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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.
William R. JANOWSKI and Robert H. Barnhisel, individually and on behalf of all others similarly situated, PlaintiffsAppellees, Cross-Appellants, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL NO. 710 PENSION FUND, William D. Joyce, John D. Kelahan, Anthony Curcio, Robert J. Baker, John H. Barranco and Roy M. Pride, Defendants-Appellants, Cross-Appellees.
Nos. 81-1340, 81-1359.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 28, 1981.
Decided March 8, 1982.
Rehearing and Rehearing En Banc Denied April 7, 1982.
Marvin Gittler, Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Chicago, 111., for defendants-appellants, cross-appellees.
Albert L. Grasso, Much, Shelist, Freed, Denenberg, Ament & Eiger, Chicago, 111., for plaintiffs-appellees, cross-appellants.
Before BAUER, Circuit Judge, FAIR-CHILD, Senior Circuit Judge, and BROWN, Senior District Judge.
The Honorable Wesley E. Brown, Senior Judge of the United States District Court for the District of Kansas, is sitting by designation.
BAUER, Circuit Judge.
The issue in this appeal is whether the International Brotherhood of Teamsters Local No. 710 Pension Fund (the Fund or Plan) as amended complies with the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Two Plan participants, William R. Janowski and Robert H. Barnhisel (collectively Janowski), initiated this action alleging that the amendments deprived them of benefits which vested before ERISA became effective. The suit ultimately proceeded as a class action on behalf of all pre-ERISA participants of the Fund whose early retirement benefits were, or might be, affected by the amendments.
The district court, 500 F.Supp. 21, approved some of the amendments and disapproved others. It held that the designation of 65 as the normal retirement age under the amended Plan was permissible. It found, however, that the methods adopted for calculating accrued benefits for pre-ERISA service, for part-time service, and for certain early retirement and vested retirement benefits were improper. It also found that the initial Summary Plan Description Booklet distributed to Plan participants explaining the revisions did not clearly advise them of the option to elect benefits under either the old or the new Plan, whichever was greater. For these reasons, the district court entered a permanent injunction enjoining the trustees of the Fund from revoking the option of any participant who entered covered employment before July 1, 1976, to choose benefits under the prior Plan. It also awarded plaintiffs attorneys’ fees in the amount of $142,485.00. Both sides have appealed. We affirm in part and reverse in part.
Each party assigns numerous errors. The trustees allege that plaintiffs may not bring this suit either as individuals or as class representatives. They attack the district court’s finding that there was an implied accrual of benefits in the original Plan which had to be reflected in the formula adopted for computing pre-ERISA service credit and assert that the formula chosen to provide accrued benefits for part-time employees complies with the statute because it is both ratable and reasonable, as required by 29 U.S.C. § 1054(b)(3)(B). The trustees also maintain that they did not reduce any vested benefits available under the prior Plan as set forth in the July 1979 Summary Plan Description Booklet because participants enrolled in the pre-ERISA Plan may elect to receive the benefits under either Plan. Therefore, they argue that the injunction preserving this option was unwarranted. Finally, the trustees assert that the award of attorneys’ fees is improper because the litigation has failed to benefit the entire class of Fund participants and has not added to the Fund’s assets.
In contrast, Janowski maintains that 57 should have been designated as the normal retirement age because that was the normal retirement age under the prior Plan. He contends that the change from 57 to 65 deprives Fund participants of vested rights to: (1) reasonable actuarial reductions for benefits beginning before 57; (2) benefits beginning at 57 instead of 65; and (3) preretirement benefits between 47 and 57. Additionally, Janowski contends that if the class prevails on the issue of the normal retirement age the amount of the fee award should be increased to reflect this fact.
i
Initially, the trustees challenge Janowski’s right to bring this action on several grounds and urge dismissal for lack of subject matter jurisdiction. They argue that this case is not ripe because no pre-ERISA Plan participant has applied for and been denied any benefits. The trustees maintain that the named plaintiffs cannot allege any concrete injury because they are not yet ready to retire and have never applied for early retirement benefits and that they do not have a common interest with the entire class of Fund participants. Additionally, the trustees allege that the exhaustion doctrine is applicable to ERISA actions and assert that Janowski has failed to pursue his administrative remedies.
The trustees’ contention that the exhaustion doctrine applies to ERISA actions is persuasive. Although § 1132 provides that a civil action may be brought by a participant “to clarify his rights to future benefits under the terms of the plan,” 29 U.S.C. § 1132, it is silent as to whether exhaustion is a prerequisite for exercising this statutory right. While this issue has not yet been considered by this court, the Ninth Circuit has held that “sound policy requires the application of the exhaustion doctrine in suits under the Act.” Amato v. Bernard, 618 F.2d 559, 567 (9th Cir. 1980).
Assuming arguendo that the exhaustion doctrine should be applied to ERISA cases, the doctrine is not absolute, White Mountain Broadcasting Co., Inc. v. FCC, 598 F.2d 274 (D.C.Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979), and unless statutorily mandated, its application is committed to the sound discretion of the court. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). Where exhaustion is not specifically required by the statute, the district court’s discretionary decision may only be disturbed on appeal when there has been a clear abuse of discretion. Medina v. Castillo, 627 F.2d 972 (9th Cir. 1980).
Exhaustion has no relevance here, for the doctrine is only appropriate where it is necessary to develop a full factual record or to take advantage of agency expertise. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). Thus, the exhaustion doctrine has been applied in ERISA cases only in situations where an individual has applied for and been denied current benefits. In contrast, this case concerns clarification of the right of an entire class to future benefits. This issue is solely a question of statutory interpretation and does not require a factual record. See McKart v. United States, 395 U.S. 185, 197-99, 89 S.Ct. 1657, 1664- 65, 23 L.Ed.2d 194 (1968); Frontier Airlines v. CAB, 621 F.2d 369 (10th Cir. 1980). Since the reasons for the doctrine are not present, the district court did not abuse its discretion in waiving the exhaustion requirement.
We reject the trustees’ contention that this case is a “battle of hypotheticals, a classic example of the difficulty of deciding a case concerning a complex, technical subject without the benefit of specific facts.” Defendants-Appellants, Cross-Appellees’ br. at 35. Janowski seeks a determination of the nature and scope of Plan participants’ rights to future benefits. Section 1132 provides that a civil action may be brought “by a participant ... to clarify his rights to future benefits under the terms of the plan . . ..” 29 U.S.C. § 1132. This action is precisely the type of action contemplated by the statute.
Lastly, the trustees’ argument that the named plaintiffs are inadequate class representatives because they have no common interest with all Fund participants ignores the fact that the class which Janowski purports to represent, and which the trial court certified, includes only “[a]ll persons who are now, or who were as of February 1, 1976, members of Local 710 of the International Brotherhood of Teamsters and who have accepted early retirement or intend to do so under the terms of the Pension Plan of said Local 710 and whose early retirement benefits were or will be affected by the amendments to the Plan made as of February 1, 1976.” The named plaintiffs certainly have interests in common with this class. The preliminary challenges to the right to bring this action fail.
II
The technical issues and the specific sections involved in this ease must be analyzed in light of the scope and spirit of ERISA as a whole. Designed to revamp private employee pension plans to ensure minimum vesting, funding, and insurance benefits, H. R.No. 1522, 93d Cong., 1st Sess. reprinted in [1974] U.S.Code Cong. & Ad.News 4639, 4647-48, ERISA is, of necessity, a highly complex and detailed statute. Three administrative agencies, the Internal Revenue Service (IRS), the Department of Labor, and the Pension Benefit Guaranty Corporation, are charged with insuring that employers amend their pension funds to conform to the statute.
The Fund involved here was created in 1955 pursuant to a collective bargaining agreement. It provided for retirement, survivor, disability, and death benefits for which the employer contributed on behalf of its employees. The Plan was amended on April 21, 1976, but was retroactively effective as of February 1, 1976. After the amendments, the Plan was submitted to the IRS and approved. Thereafter, in January 1978, a booklet describing the revisions and reprinting the text of the new Plan was published for Plan participants. The option of participants with pre-ERISA service to take early retirement benefits under the prior Plan did not appear in either the text of the Plan or the Plan description. These omissions were corrected in the revised booklet, distributed in July 1979, where the option was included in the text of the Plan and the Plan description.
Under the prior Plan a participant was entitled to benefits on the normal retirement date, the date on which the participant reached age 57 and had accumulated 20 years of credited service. The amended Plan retained the right to receive benefits at age 57 with 20 years of service but changed the designation from normal retirement to regular retirement and, pursuant to 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8), adopted a new normal retirement age of 65, applicable to participants who were not enrolled in the pre-ERISA Plan.
Since calculations of vesting and accrued benefits are based on the normal retirement age, the age designation significantly affects the amount of benefits the participant receives. Section 411(a)(8) defines normal retirement age as the earlier of: (A) the time a Plan participant attains normal retirement age under the Plan or (B) the later of the time a Plan participant attains 65 or accumulates 10 years of credited service. 26 U.S.C. § 411(a)(8). Janowski argues that subsection (A) mandates that the normal retirement age remain the same in the amended Plan as it was in the prior Plan. In contrast, the trustees read section 411(a)(8) to permit them to designate any age as the normal retirement age, subject to the limitation that it cannot be later than the date a participant attains age 65 unless the participant has not accumulated 10 years of credited service, in which case the participant reaches normal retirement age after 10 years of credited service. The trustees concede that participants in the pre-ERISA Plan have a right to benefits at age 57 after 20 years of credited service but emphasize that the right has been incorporated into the new Plan under the designation regular retirement. They assert that nothing in section 411(a)(8) requires that they designate an age less than 65 as the normal retirement age for participants who were not enrolled in the pre-ERISA Plan.
Initially, we note that § 411(a)(8) has not yet been judicially interpreted. Therefore, in construing the section we are guided by the plain meaning of the language, Atchison, T. & S.F. Ry. Co. v. United States, 617 F.2d 485 (7th Cir. 1980), as well as Congressional intent. The legislative history to § 411(a)(8) indicates that in fashioning minimal requirements for private pension funds, Congress intended to increase the number of individuals participating in retirement plans, H.R.No. 93-807, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 4671, while at the same time promoting the financial integrity of those plans. H.R.No. 93-533, 93d Cong. 1st Sess. reprinted in [1974] U.S. Code Cong. & Ad.News 4652. Analyzing § 411(a)(8) in this light, it is clear that Congress intended the trustees, as fiduciaries, to balance desired benefits against economic realities. For this reason, the statute authorized any normal retirement age subject to the limitations of 65 years or 10 years of service. Under § 411(a)(8) the trustees certainly could have established a normal retirement age of less than 65; the statutory language, however, in no way requires them to do so.
Congress was aware that ERISA would require private pension funds to be' substantially amended to conform to ERI-SA. Had it intended the normal retirement age to be the same age as that under the prior Plan it undoubtedly would have so provided. Obviously, the required amendments were costly and Congress wisely committed the task of balancing eligibility standards and benefit levels against the ability of the plans to pay. We agree that age 65 was permissibly chosen as the normal retirement age under the new Plan.
Janowski makes much of the fact that the normal retirement age was not redesignated until April 21, 1976. Citing no authority in support, he argues that in order to change the normal retirement age from 57 to 65 the trustees would have had to make the change before February 1, 1976, the date on which the ERISA reforms were incorporated into the prior Plan. Plaintiffs-Appellees, Cross-Appellants’ reply br. at 2. In rebuttal the trustees contend that Janowski’s timeliness argument may not be considered because it was raised for the first time on appeal and, alternatively, argue that the date on which the normal retirement age was redesignated is of no significance.
It is axiomatic that generally we may not review issues raised for the first time on appeal. Houser v. General Motors Corp., 595 F.2d 366, 371 (7th Cir. 1979). We need not decide the timeliness issue, however, for assuming arguendo that the issue was preserved, it fails. In oral argument Janowski conceded that under ERISA the trustees could have changed the retirement age to 65 had they done so before February 1, 1976. Janowski interprets the word “plan” in the phrase “normal retirement age under the plan,” 29 U.S.C. § 1002(24), 26 U.S.C. § 411(a)(8), to refer to the pre-ERISA Plan. He strenuously argues that, since 65 was not the normal retirement age under the pre-ERISA Plan or on the day the ERISA reforms became effective, the trustees had no authority to alter this age.
We do not read the word “plan” to have the restrictive definition Janowski urges. Nothing in the statutory language implies that the normal retirement age must be the age designated under the earlier Plan. In fact, § 411 makes no reference to any preERISA provision. It merely states that a normal retirement age be specified and provides that this age may be lower than 65 but not greater than 65, provided that at 65 the participant has accumulated 10 years of credited service. The. trustees did all that the statute required by specifying an age not greater than 65. We do not agree with Janowski that the date on which the preERISA Plan was revised to comply with the statute is significant. The statute did not require pre-ERISA plans to be amended on the date it became effective. Thus, preERISA benefits accrued under the prior Plan until February 1, 1976; pre-ERISA benefits could not accrue after ERISA became effective. Since the trustees concededly had the right to change the retirement age to 65 on February 1,1976, they also had the right to make this change on April 21, making it retroactively effective as of February 1, 1976.
III
The next consideration is whether the amended Plan incorporated a proper method for computing accrued benefits during pre-ERISA years. The statute sets forth two formulas to be applied to pre-ERISA years. Subsection (i) provides that accrued benefits shall be determined “under the plan, as in effect from time to time prior to September 2,1974.” This subsection is triggered whenever a prior plan contained an accrued benefit formula. Subsection (ii) provides the formula to be applied if the old plan had no accrued benefit formula.
It is undisputed that the prior Plan did not specify a formula. However, relying on the fact that the prior Plan provided for a full benefit of $450 per month for persons retiring at age 57 after 20 years of qualified service, the district court reasoned that ‘Aoth of the benefits implicitly accrued in'each of the 20 years of qualified service. We reject the concept of implied accrual of benefits, for had Congress intended that a formula based on required years of service be implied whenever a plan did not specify one, subsection (ii) would be superfluous. Since statutes should be construed so as to give effect to all their parts, People v. Consolidated Rail Corp., 589 F.2d 1327 (1978), cert. denied, 442 U.S. 942, 99 S.Ct. 2884, 61 L.Ed.2d 312 (1979), and since there was no accrued benefit formula in the prior Plan, subsection (ii) should have been applied.
IV
We next consider whether the amended Plan provides appropriate accrual for part-time service. Under § 4.04 of the amended Plan, employees who work less than 20 weeks receive no accrued credit, employees who work between 20 and 35 weeks receive one-half year credit, and employees who work more than 35 weeks receive a full year’s credit. The district court concluded that this “rough allocation” of credit was contrary to 26 U.S.C. § 411(b)(3)(B) because it was too imprecise. In reaching its decision that the allocation was not sufficiently ratable, the district court relied on two of the examples set forth in the regulation implementing § 411(b)(3)(B), 29 C.F.R. § 2530.2042(c)(4). These two examples contained computations which more accurately credit a part-time employee for the specific amount of time worked.
The trustees argue that the district court erred by treating these examples as regulations. They emphasize that the statute does not provide a formula for prorating credit but simply requires that the partial year crediting be reasonable and ratable. The trustees contend that the amended Plan fulfills these limitations. Hence, they insist that the district court had no authority to interfere with their discretion by imposing its own notion of reasonableness to require a more precise allocation than contemplated by the statute or the regulations.
Trustees’ position fails. Under the formula adopted by the trustees, employees who have worked 21 weeks receive the same credit as those who have worked 34 weeks. For employees who work more than 21 weeks, the allocation is neither reasonable nor ratable. Janowski has propounded a method of computation whereby employees who work between 21 and 34 weeks would fall within one of the six groups, each group receiving increased credit for time worked on a percentage basis up to 35 weeks, at which point credit for the entire year would be given. Under his proposed amendment, an employee who works 20 but less than 21 weeks would receive .5 year credit, an employee who works 21 but less than 24 weeks would receive .6 year credit, an employee who works 24 but less than 28 weeks would receive .7 year credit, an employee who works 28 but less than 31 weeks would receive .8 year credit, an employee who works 31 weeks but less than 35 weeks would receive .9 year credit, and an employee who works 35 weeks or more would receive a full year’s credit. This proposed Plan amendment satisfies the statute and should be incorporated into the amended Plan.
V
With respect to early retirement benefits or deferred benefits, it is undisputed that any participant enrolled in the original Plan retains the choice to receive either the new Plan’s “formula” benefit or the prior Plan’s “scheduled” benefit, whichever is greater. The trustees maintain that because this fact is undisputed and clearly set forth in the July 1979 Summary Plan Description Booklet, the entry of an injunction preserving this option is unnecessary and inappropriate.
As required by Fed.R.Civ.P. 65(d), the district court set forth its reasons for issuing the permanent injunction. It found that injunctive relief was appropriate for two reasons: (1) the improper schedule set forth in the 1978 Summary Plan Description Booklet could be readopted by the trustees and (2) retroactivity of the amendment in the July 1979 booklet was not clearly specified.
We cannot agree. In determining whether to issue a permanent injunction the likelihood of future violations must be viewed in light of past conduct. SEC v. Resch-Cassin & Co., Inc., 362 F.Supp. 964 (S.D.N.Y.1973). We are also mindful that injunctive relief is not appropriate to prevent the possible occurrence of an event at some indefinite future time. Interco Inc. v. FTC, 478 F.Supp. 103 (D.D.C.1979). In this case no participant has been refused prior Plan “scheduled benefits,” nor is there any evidence indicating that the trustees will revoke this option. The trustees have consistently stated that the option to receive benefits under the Plan was available to participants enrolled in the Plan before ER-ISA became effective. Indeed, although the trustees omitted the prior Plan’s schedule of benefits in the January 1978 Summary Plan Description Booklet, this omission was corrected in the following year’s booklet, which clearly states that “those Participants who enter Covered Employment prior to July 1, 1976 shall have the option of receiving the amount of the Early Retirement Pension as determined in Section 3.08[a] [of, the amended Plan] or the monthly amount of Early Retirement Pension according to the following Schedule [computed according to the prior Plan].” July 1979 Pension Plan & Summary Plan Description Booklet at 72. Therefore, there is no reason to conclude that the trustees will attempt to revoke the option or deny a participant benefits rightfully due. If a participant is, in the future, improperly denied benefits, an action can be brought at that time and an award of damages can be fashioned which will adequately compensate for any loss. Banks v. Trainor, 525 F.2d 837 (7th Cir. 1975), cert. denied, 424 U.S. 978, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976). Accordingly, the injunction should not have been entered.
VI
Lastly, we consider whether the award of attorneys’ fees was proper. The trial court ordered the Fund to pay $142,485.00 in attorneys’ fees for several reasons: (1) fees and expenses are authorized by the statute; (2) the class prevailed on all but one major issue; and (3) the litigation obtained a financial benefit for many members of the class. The trustees do not dispute that an award of attorneys’ fees may be appropriate in some ERISA actions, but, relying on Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 109-11 (3d Cir. 1976), argue that an award of attorneys’ fees is inappropriate where, as here, the litigation involves competing interests in a common fund. They contend that there has been no net benefit to the entire class of Fund participants as the result of the litigation. Again, relying on Lindy Brothers, thej maintain that where there is no benefit to the Fund, fees may not be awarded. Further, they stress that Janowski did not prevail on the normal retirement age which, they contend, is the principal issue.
It is well-settled that the standard of review of trial court awards of attorneys’ fees is abuse of discretion and that “[a]n abuse of discretion is found only when there is a definite conviction that the court made a clear error of judgment in its conclusion upon weighing relevant factors.” Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir. 1980). It is equally well-settled that in determining whether an award of attorneys’ fees in suits brought under ERISA is appropriate, courts have considered the following factors: (1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of the offending parties to satisfy personally an award of attorneys’ fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ positions. Iron Workers Local 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980); Eaves v. Penn, 587 F.2d 453 (10th Cir. 1978).
Unfortunately, the district court did not justify its decision to award attorneys’ fees in terms of these specific guidelines, which would have been helpful in reviewing its decision for abuse of discretion. However, while a fuller explanation of its reasoning would have been helpful, there is sufficient analysis in the district court’s decision to permit review. The district court primarily based its award on the fact that Janowski, although not wholly successful, generally prevailed on the merits, thereby preventing retirees under this and other employee pension funds from being underpaid. It also noted that although the trustees did not act in bad faith or with the intent to deprive, they failed to cooperate with Janowski in complying with at least one court order and by their dereliction may have contributed to an additional expenditure of time by Janowski’s attorneys. Further, distinguishing Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976), the district court recognized that the fees would not be paid out of a fund which could be recovered from the trustees and balanced this factor against the fact that the Plan’s assets had significantly increased over paid benefits and that the fee award was a small factor of the total fees paid to the Fund’s attorneys in the previous fiscal year. Only the factor of whether or not an award of attorneys’ fees against the offending party would deter other persons acting under similar circumstances was not specifically addressed.
Fee provisions are designed as an enforcement incentive to insure that aggrieved parties who are unable to pay their own attorneys’ fees are not denied access to the courts. In situations where aggrieved parties are suing as “private attorneys general,” advancing a public interest, the award of attorneys’ fees and costs generally has been automatic, unless special circumstances rendered the award unjust. Thus, the discretionary fee provisions in the civil rights statutes are considered virtually mandatory. The award of fees as an enforcement incentive is not as great, however, in an ERISA action for two reasons. First, fiduciaries' have a statutory obligation to insure that plans are properly administered. 29 U.S.C. § 1105. Second, while plan participants may be suing for the benefit of all beneficiaries of a particular fund, they may also be suing merely on their own behalf.
Accordingly, it is clear that, in light of the policies reflected in ERISA, the need for awarding statutorily authorized attorney’s fees to encourage enforcement of the Act is not so compelling that the discretionary provision should be construed as virtually mandatory. Iron Workers Local 272 v. Bowen, 624 F.2d 1255, 1265 (5th Cir. 1980). Nevertheless, we believe that this award is justified because the litigation benefitted a substantial group of Fund participants and that the award is necessary to enable aggrieved parties to invoke the power of the court when pre-ERISA benefits are in danger. The award of fees is not an abuse of discretion.
In considering the amount of the award, the district court carefully and thoroughly analyzed the complexity and unsettled nature of the questions involved, the expertise of the attorneys, and the time expended to arrive at the hourly rate of $100 and $125 and the multiplier of two. We adopt the district court’s analysis and conclusion with respect to the amount awarded and, as a consequence, need not repeat it. Because the award was based on several factors, only one of which was whether Janowski was.the prevailing party, nothing in our decision requires recomputation of the amount awarded.
The district court’s decision is affirmed with respect to exhaustion, ripeness, class representation, normal retirement age and credit for part-time benefits. The district court’s opinion is reversed with respect to calculation of accrued benefits and the entry of a permanent injunction is vacated. Each party is to bear its own appeal costs. Accordingly, the district court’s decision is
AFFIRMED IN PART and REVERSED IN PART.
. Both 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8) define normal retirement age as:
(A) the time a plan participant attains normal retirement age under the plan, or
(B) the later of—
(i) the time a plan participant attains age 65, or
(ii) the 10th anniversary of the time a plan participant commenced participation in the plan.
. 29 U.S.C. § 1054(b)(1)(D) in part provides:
[A] defined benefit plan satisfies the requirements of this subparagraph with respect to such years of participation only if the accrued benefit of any participant with respect to such years of participation is not less than the greater of—
(i) his accrued benefit determined under the plan, as in effect from time to time prior to September 2, 1974, or
(ii) an accrued benefit which is not less than one-half of the accrued benefit to which such participant would have been entitled if subparagraph (A), (B), or (C) applied with respect to such years of participation.
. 26 U.S.C. § 411(b)(3)(B) provides:
Less than full time service. — For purposes of this paragraph, except as provided in sub-paragraph (C), in the case of any employee whose customary employment is less than full time, the calculation of such employee’s service on any basis which provides less than a ratable portion of the accrued benefit to which he would be entitled under the plan if his customary employment were full time shall not be treated as made on any reasonable and consistent basis.
. 29 C.F.R. § 2530.204-2(c)(4) sets forth examples of acceptable credit allocations:
Examples. The following are examples of reasonable and consistent methods for crediting partial years of participation:
(i) A plan requires 2,000 hours of service for a full year of participation. An employee who is credited during a computation period with no less than 1,000 hours of service but less than 2,000 hours of service is credited with a partial year of participation equal to a portion of a full year of participátion determined by dividing the number of hours of service credited to the employee by 2,000.
(ii) A plan requires 2,000 hours of service for a full year of participation. The plan credits service in an accrual computation period in accordance with the following table:
Hours of service credited Percentage of full year of participation credited
1000 ......... ......... 50
1001 to 1200 .. ......... 60
1201 to 1400 .. ......... 70
1401 to 1600 .. ......... 80
1601 to 1800 .. ......... 90
1801 and above ........ 100
Under this method of crediting partial years of participation, each employee who is credited with not less than 1,000 hours of service is credited with at least a ratable portion of a full year of participation.
(iii) A plan provides that each employee who is credited with at least 1,000 hours of service in an accrual computation period must receive credit for at least a partial year of participation for that computation period. For full accrual, however, the plan requires that an employee must be credited with a specific number of hours worked; employees who meet the 1,000 hours of service requirement but who are not credited with the specified number of hours worked required for a full year of participation are credited with a partial year of participation on a prorata basis. For example, if the plan requires 1,500 hours worked for full accrual, an employee with 1,500 hours worked would be credited with full accrual, but an employee with 1,000 hours worked and 500 other hours of service would be credited with /3 of full accrual. The plan’s method of crediting service for accrual purposes is consistent with the requirements of this paragraph. It should be noted, however, that use of hours worked as a basis for prorating benefit accrual may result in discrimination prohibited under section 401(a)(4) of the Code.
(iv) Employee A is employed on June 1, 1980 in service covered by a plan with a calendar year accrual computation period, and which requires 1,800 hours of service for a full accrual. Employee A completes 500 hours from June 1, 1980 to December 31, 1980, and completes 100 hours per month in each month during 1981. A is admitted to participation on July 1, 1981. A is credited with 1,200 hours of service for the accrual computation period beginning January 1, 1981. Under the rules set forth in paragraph (c)(3) of this section, A is required to be credited with not less than one-third of a full accrual (600 hours divided by 1,800 hours).
. On July 24, 1980, the district court ordered the trustees to cooperate with plaintiffs in reaching a declaratory judgment which had, up to that point, been agreed upon in form only and in drafting the necessary amendments to the Plan. The trustees refused to comply with this order, thereby necessitating an additional expenditure of time by plaintiffs’ attorneys.
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_respondentstate
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32
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
OFFUTT HOUSING CO. v. COUNTY OF SARPY et al.
No. 404.
Argued April 26, 30, 1956.
Decided May 28, 1956.
Robert L. Stern argued the cause for petitioner. With him on the brief was Charles S. Reed.
Dixon C. Adams and Orville Bntenman argued the cause for respondents. With them on the brief was Clarence S. Beck, Attorney General of Nebraska.
Solicitor General Sobeloff, Acting Assistant Attorney General Rice, Hilbert P. Zarky and Edwin A. Goldstein filed a brief for the United States, as amicus curiae, urging reversal.
Jennings P. Felix filed a brief for Grant County, Washington, as amicus curiae, urging affirmance.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This suit was brought by petitioner against respondent county and its treasurer for a declaratory judgment that petitioner was not required to pay certain state and county “personal property” taxes and for an injunction against the levy of such taxes on that property. The controlling facts are not in dispute. Petitioner is a Nebraska corporation organized primarily to provide housing for rent or sale. On January 18, 1951, petitioner entered into a contract with the Secretary of the Air Force to lease 63 acres of land and to build a housing project on Offutt Air Force Base in respondent county in accordance with specifications submitted to the Department of the Air Force and to be approved by the Federal Housing Commissioner.
The lease was for 75 years at a rental price of $100 per year. It provided that the “buildings and improvements erected by the Lessee, constituting the aforesaid housing project, shall be and become, as completed, real estate and part of the leased land, and public buildings of the United States, leased to Lessee . . .” and further provided that “upon the expiration of this lease, or earlier termination, all improvements made upon the leased premises shall remain the property of the Government without compensation . . . .” Petitioner was to lease all the units of the project to such military and civilian personnel at the Base as were designated by the Commanding Officer, on terms specified in the contract and at a maximum rent approved by the Federal Housing Administration and the Air Force. The Government was to provide fire and police protection to the project on a reimbursable basis. Petitioner had the right to permit public utilities to extend water, gas, sewer, telephone, and electric power lines onto the leased land in order to provide those services. Petitioner agreed to insure the buildings at its own expense, to permit Government inspection of the premises, and to comply with regulations prescribed by the Commanding Officer for military requirements for safety and security purposes, consistent with the use of the leased land for housing. Petitioner could not assign the lease without the written approval of the Secretary of the Air Force.
The preferred stock of petitioner was held by the Commissioner of the Federal Housing Administration which, acting under Title VIII of the National Housing Act (the Wherry Military Housing Act), 63 Stat. 570, insured a mortgage on the project after receiving a certificate from the Department of the Air Force that a housing project was necessary to provide adequate housing for civilian or military personnel. After the signing of the contract and the insurance of the mortgage, construction proceeded forthwith. Petitioner filed no county tax return, although the Attorney General of Nebraska had ruled that its interest in the project, including all of the “personal property” used therein, was taxable as “personal property.” On June 23, 1952, the county assessor of Sarpy County filed a schedule on behalf of petitioner, listing a taxable total of $825,685, itemized as “Furniture & Fixtures— Tools & Equipment”; “Household Appliances”; and “Improvements on Leased Land.” Petitioner never paid' the resulting county and state taxes, and after the county treasurer threatened to issue the usual distress warrant to collect the taxes, petitioner brought this suit.
The District Court of Sarpy County held that, since title to the buildings and improvements was in the United States, Nebraska and Sarpy County could not tax them. The Supreme Court of Nebraska reversed, holding that Congress had given Nebraska the right to tax petitioner’s interest in the property and that for tax purposes, under Neb. Rev. Stat., Reissue 1950, § 77-1209, petitioner was in fact and as a matter of law the owner of the property sought to be taxed. 160 Neb. 320, 70 N. W. 2d 382. Petitioner’s attack on the Nebraska judgment raises serious questions of state-federal relations with respect to taxation of private housing developments on Government-owned land, and therefore we granted certiorari. 350 U. S. 893.
This is another in a long series of cases in this Court dealing with the power of the States to tax property in private hands against a claim of exempt status deriving from an immunity of the Federal Government from state taxation. Offutt Air Force Base falls within the scope of Article I, § 8, cl. 17 of the United States Constitution, providing that the Congress shall have power
“To exercise exclusive Legislation in all Cases whatsoever, over such 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 course of construction of this provision cannot be said to have run smooth. The power of "exclusive Legislation” has been held to prohibit a state tax on private property located on a military base acquired pursuant to Art. I, § 8, cl. 17. Surplus Trading Co. v. Cook, 281 U. S. 647. On the other hand, the State may acquire the right to tax private interests within such a location by permission of Congress, see, e. g., the Buck Act, 54 Stat. 1059 (permitting state sales, use, and income taxes), and we have also held that the State may tax when the United States divests itself of proprietary interest over the area on which the tax is sought to be levied. S. R. A., Inc. v. Minnesota, 327 U. S 558; see also Baltimore Shipbuilding Co. v. Baltimore, 195 U. S. 375.
The line of least resistance in analysis of our immediate problem is to ascertain whether Congress has given consent to the type of state taxation here asserted. The applicable congressional statutes are the Military Leasing Act of 1947 and the Wherry Military Housing Act of 1949 (adding Title VIII to the National Housing Act). The Military Leasing Act provides:
“That whenever the Secretary of War or the Secretary of the Navy shall deem it to be advantageous to the Government he is authorized to lease such real or personal property under the control of his Department as is not surplus to the needs of the Department within the meaning of the Act of October 3, 1944 (58 Stat. 765), and is not for the time required for public use, to such lessee or lessees and upon such terms and conditions as in his judgment will promote the national defense or will be in the public interest. Each such lease shall be for a period not exceeding five years unless the Secretary of the Department concerned shall determine that a longer period will promote the national defense or will be in the public interest. . . . Each such lease shall contain a provision permitting the Secretary of the Department concerned to revoke the lease at any time, unless the Secretary shall determine that the omission of such provision from the lease will promote the national defense or will be in the public interest. In any event each such lease shall be revocable by the Secretary of the Department concerned during a national emergency declared by the President. . . . The authority herein granted shall not apply to oil, mineral, or phosphate lands. . . .
“Sec. 6. The lessee’s interest, made or created pursuant to the provisions of this Act, shall be made subject to State or local taxation. Any lease of property authorized under the provisions of this Act shall contain a provision that if and to the extent that such property is made taxable by State and local governments by Act of Congress, in such event the terms of such lease shall be renegotiated.” 61 Stat. 77T-776.
Two years later, the Wherry Act provided:
“Whenever the Secretary of the Army, Navy, or Air Force determines that it is desirable to lease real property within the meaning of the Act of August 5, 1947 (61 Stat. 774), to effectuate the purposes of this title, the Secretary concerned is authorized to lease such property under the authority of said Act upon such terms and conditions as in his opinion will best serve the national interest without regard to the limitations imposed by said Act in respect to the term or duration of the lease, and the power vested in the Secretary of the Department concerned to revoke any lease made pursuant to said Act in the event of a national emergency declared by the President shall not apply. . . ,” 63 Stat. 570, 576.
These two Acts interlock and must be read together. The reasonable relationship between them has been thus delineated by the Court of Appeals for the Third Circuit:
“In our view this provision of the National Housing Act [the 1949 Act] merely permits leasing for military housing purposes, already covered by the general authorization of the 1947 Act, to be accomplished without regard to specified restrictions of the 1947 Act, when the elimination of these restrictions would serve the purposes of the Housing Act. Other provisions of the 1947 Act, including the language of Section 6 subjecting the lessee’s interest to local taxation, apply to leases made under the authority of both Acts.
“We have not overlooked the argument for a narrower view of the scope of the 1947 Act based upon legislative history indicating that the primary purpose of that Act was to provide for the leasing of stand-by defense plants. But the language of the Act extends the leasing authority to all non-surplus property under the control of the Defense Department except oil, mineral, or phosphate lands (an exception which would be unnecessary if the Act applied only to defense plants). An additional indication that the 1947 Act encompasses the leasing of property generally is found in Section 2 which repeals the prior authority for the leasing of War Department property generally, 27 Stat. 321. The Senate Report expresses the reporting committee’s understanding that this prior leasing statute was being 'entirely superseded’. Sen. Rep. No. 626,1947, 80th Cong. 1st Sess. [p. 3].” Fort Dix Apartments Corp. v. Borough of Wrightstown, 225 F. 2d 473, 475-476.
We agree with this. To be sure, the 1947 Act does not refer specifically to property in an area subject to the power of “exclusive Legislation” by Congress. It does, however, govern the leasing of Government property generally and its permission to tax extends generally to all lessees’ interests created by virtue of the Act. The legislative history indicates a concern about loss of revenue to the States and a desire to prevent unfairness toward competitors of the private interests that might otherwise escape taxation. While the latter consideration is not necessarily applicable where military housing is involved, the former is equally relevant to leases for military housing as for any other purpose.
We do not say that this is the only admissible construction of these Acts. We could regard Art. I, § 8, cl. 17 as of such overriding and comprehensive scope that consent by Congress to state taxation of obviously valuable private interests located in an area subject to the power of “exclusive Legislation” is to be found only in explicit and unambiguous legislative enactment. We have not heretofore so regarded it, see S. R. A., Inc. v. Minnesota, 327 U. S. 558; Baltimore Shipbuilding Co. v. Baltimore, 195 U. S. 375, nor are we constrained by reason to treat this exercise by Congress of the “exclusive Legislation” power and the manner of construing it any differently from any other exercise by Congress of that power. This is one of those cases in which Congress has seen fit not to express itself unequivocally. It has preferred to use general language and thereby requires the judiciary to apply this general language to a specific problem. To that end we must resort to whatever aids to interpretation the legislation in its entirety and its history provide. Charged as we are with this function, we have concluded that the more persuasive construction of the statute, however flickering and feeble the light afforded for extracting its meaning, is that the States were to be permitted to tax private interests, like those of this petitioner, in housing projects located on areas subject to the federal power of “exclusive Legislation.” We do not hold that Congress has relinquished this power over these areas. We hold only that Congress, in the exercise of this power, has permitted such state taxation as is involved in the present case.
Petitioner also argues that the state tax, measured by the full value of the buildings and improvements, is not on the “lessee’s interest” but is on the full value of property owned by the Government. Labeling the Government as the “owner” does not foreclose us from ascertaining the nature of the real interests created and so does not solve the problem. See Millinery Center Building Corp. v. Commissioner, 350 U. S. 456. The lease is for 75 years; the buildings and improvements have an estimated useful life of 35 years. The enjoyment of the entire worth of the buildings and improvements will therefore be petitioner’s.
Petitioner argues, however, that the Government has a substantial interest in the buildings and improvements, since the Government prescribed the maximum rents and determined the occupants, had voting interests' in petitioner, provided services, and took the financial risks by insuring the project. Petitioner compares its own position to that of a “managing agent.” This characterization is an attempt by use of a phrase to make these facts fit an abstract legal category. This contention would certainly surprise a Congress which was interested in having private enterprise and not the Government conduct these housing projects. The Government may have “title,” but only a paper title, and, while it retained the controls described in the lease as a regulatory mechanism to prevent the ordinary operation of unbridled economic forces, this does not mean that the value of the buildings and improvements should thereby be partially allocated to it. If an ordinary private housing venture were being assessed for tax purposes, the value would not be allocated between an owner and the mortgage company which does his financing or between the owner and the State, which may fix rents and provide services. In the circumstances of this case, then, the full value of the buildings and improvements is attributable to the lessee’s interest.
Petitioner further argues that the tax on the appliances and furniture is invalid because petitioner owns those items, never bought them from the Government, and that therefore its interest was not “made or created pursuant to the provisions of this Act [the Military Leasing Act of 1947].” Here again using a label, that of “owner,” as descriptive of petitioner does not answer the question. It appears from the record that petitioner was required to supply the appliances for the housing project. Petitioner and its tenants will have full use of them for the lease period and they or their replacements must be left on the property at the end of the lease. Petitioner’s interest in the appliances, just like its interest in the buildings, is determined by its agreement with the Government and, keeping in mind the purpose of § 6, we interpret that section as treating these items alike.
For these reasons the judgment of the Supreme Court of Nebraska must be
Affirmed.
The record before us is unclear whether the estimated useful life of all the appliances and furniture is less than the lease period. To the extent that the estimated useful life of any of these items extends beyond the term of the lease, the value attributable to such period must be excluded from the tax, since it represents the Government’s ownership interest. In the present state of the record, however, petitioner’s remedy, if any, is in the Nebraska courts, not here.
The record does not indicate clearly the relationship of the parties with respect to the furniture — valued at $205 in the total 1952 valuation of the taxable property at $825,685. This is a minor matter and we leave petitioner to seek redress in the Nebraska courts should the interests of the Government and petitioner in the furniture be significant!y different from their interests in the appliances or buildings.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_r_bus
|
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 "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.
Samson EISNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 15991.
United States Court of Appeals Sixth Circuit.
Oct. 6, 1965.
Eugene J. Stagnaro, Jr. (Court Appointed), Cincinnati, Ohio, for appellant.
Wayne J. Carroll, Asst. U. S. Atty., Louisville, Ky., William E. Scent, U. S. Atty., Louisville, Ky., on brief, for ap-pellee.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.
CECIL, Senior Circuit Judge.
Samson Eisner, the petitioner-appellant herein, was convicted in the United States District Court for the Western District of Kentucky, on November 18, 1960, on a one-count indictment which charged that he knowingly received and concealed certain stolen furs which had been transported in interstate commerce. He was sentenced to five years’ imprisonment and fined $1500. His conviction was appealed to this Court and was affirmed in United States of America, plaintiff-appellee, v. Eisner, defendant-appellant, 6 Cir., 297 F.2d 595, cert. den. 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17.
On April 20, 1964, the appellant filed a motion under Section 2255, Title 28, U.S.C., for the vacation of his sentence on the ground that the indictment did not charge an offense against the United States and that the sentence imposed was in violation of the constitution and laws of the United States. On the same day he filed a motion for a hearing under Rule 52(b) on newly discovered evidence. Both of these motions were overruled in the District Court and this appeal followed.
It is alleged that the indictment is fatally defective because it does not include the language “Contrary to law in violation of Section 2315, Title 18, U.S.C.,” and because it does not state where the offense was committed. This Court has held that the sufficiency of the indictment is not subject to attack under Section 2255, Title 28, U.S.C. Stegall v. United States, 6 Cir., 259 F.2d 83, 84, cert. den. 358 U.S. 886, 79 S.Ct. 128, 3 L.Ed.2d 114. See also Kreuter v. United States, 10 Cir., 201 F.2d 33, 35. The general rule is that the sufficiency of an indictment cannot be questioned on a motion under Section 2255 unless it is so defective on its face as not to charge an offense under any reasonable construction. Klein v. United States, 7 Cir., 204 F.2d 518, 514; Walker v. United States, 7 Cir., 218 F.2d 80, 81.
Considering the indictment we are satisfied that it adequately charges an offense against the laws of the United States and that it is not defective on its face. In Anderson v. United States, 6 Cir., 215 F.2d 84, 86, cert. den. Lewis v. United States, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698, we said: “This court has held repeatedly that the required clarity of the charge laid in an indictment is only such as will fairly apprise the defendant of the crime intended to be alleged, so as to enable him to prepare his defense and to make the judgment, whether of acquittal or conviction, a complete defense to a second prosecution for the same offense.” Bettman v. United States, 224 F. 819, 826, C.A. 6, cert. den. 239 U.S. 642, 36 S.Ct. 163, 60 L.Ed. 482; Pierce v. United States, 6 Cir., 86 F.2d 949, 951; Bogy v. United States, 96 F.2d 734, 736, C.A. 6, cert. den. 305 U.S. 608, 59 S.Ct. 68, 33 L.Ed. 387; Hughes v. United States, 114 F.2d 285, 288, C.A. 6; Richardson v. United States, 150 F.2d 58, 60, C.A. 6; Ross v. United States, 180 F.2d 160, 164, C.A. 6. The indictment in the case before us meets all the requirements of a valid indictment. The question of the sufficiency of the indictment was one of law and did not require a hearing by the district judge.
We are at a loss to understand what point the appellant intended to raise by his motion for a hearing under Rule 52(b) on newly discovered evidence. This rule which refers to plain errors occurring at a trial is not applicable to a Section 2255 proceeding. Section 2255 provides for a collateral attack on a judgment of conviction and is not a substitute for appeal for alleged errors committed at the trial. Newly discovered evidence may be the subject of a motion for a new trial under Rule 33 Federal Rules of Criminal Procedure. That rule limits the filing of such a motion to two years after final judgment. The motion before us was not timely filed as a motion for new trial on newly discovered evidence.
The appellant alleges, in support of this motion, that at the time of his trial in the District Court, there was pending against him, in the Circuit Court of Warren County, Kentucky, a traffic charge of “running a stop sign” in Bowling Green, Kentucky. This is the charge upon which the appellant was first arrested and which led to the search of his car under a federal search warrant. The appellant further alleges that subsequent to his conviction in the District Court, the Circuit Court of Warren County dismissed the traffic charge on the ground that the arrest was illegal. He then argues that the evidence obtained and seized out of an illegal arrest is inadmissible. The record from the Circuit Court of Warren County does not support the claim that the traffic charge was dismissed on the ground of an illegal arrest. A certified copy of the order from the Circuit Court shows only that a jury returned a verdict of “not guilty of the charge of running a stop sign.”
Counsel appointed by the Court to represent the appellant on this appeal argues that the search was illegal. The basis of this argument is that the arrest on an alleged minor traffic violation was a subterfuge for a search of the appellant’s car and was therefore illegal. This question was not presented to the trial judge in this proceeding nor was it specifically raised on the appellant’s direct appeal to this Court.
Prior to the appellant’s trial in the District Court, the trial judge heard and determined adversely to the appellant a motion to suppress evidence. The denial of that motion was the principal question submitted to this Court on the appellant’s appeal. The Court said in its opinion, 297 F.2d 595, 596: “Appellant attacks the validity of the warrant and the manner of its execution.” The question of illegality now urged upon us could have been raised on the motion to suppress evidence in the trial court and on the subsequent appeal to this Court. We do not look with favor upon an attempt to raise questions in a collateral attack on a judgment of conviction which could have and should have been raised at the time of trial. Neither will we pass on questions on appeal that were not first heard and determined by the trial judge. Duignan v. United States, et al., 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996; Blair, Commissioner v. Oesterlein Machine Company, 275 U.S. 220, 225, 48 S.Ct. 87, 72 L.Ed. 249; Burnet, Commissioner v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; General Utilities & Operating Co. v. Helvering, Commissioner, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154; Helvering, Commissioner v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511; Helvering, Commissioner v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755; Helvering, Commissioner v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796.
The judgment of the District Court is affirmed.
. “(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. OLIN MATHIESON CHEMICAL CORPORATION, Herbert G. Wolf and Far East International Corp., Defendants, Philipp Bauer Co., Inc., and Kenneth B. Bauer, Defendants-Appellants.
No. 152, Docket 30512.
United States Court of Appeals Second Circuit.
Argued Oct. 6, 1966.
Decided Oct. 28, 1966.
See also D.C., 36 F.R.D. 18.
Richard A. Givens, New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Paul R. Grand, Michael W. Mitchell, Asst. U. S. Attys., on the brief), for appellee.
Edward S. Friedland, New York City, for appellants, Philipp Bauer Co., Inc., and Kenneth B. Bauer.
Before SMITH, HAYS and FEINBERG, Circuit Judges.
PER CURIAM:
Appellants were convicted by verdict of a jury of violating 18 U.S.C. § 1001 which provides:
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully * * * conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
The evidence shows that in connection with the distribution by appellants of pharmaceutical products in Vietnam and Cambodia, appellants received and made certain payments which they failed to disclose in answer to questions concerning such payments on forms provided by the Agency for International Development and filed by appellants in order to obtain payment for the products from foreign aid funds. Appellants contend that they were not required to disclose payments of the type which they admittedly received and made and that, therefore, their failure to do so does not constitute a violation of Section 1001.
The AID forms called for “information as to agents’ commissions, domestic and foreign * * * paid or to be paid,” to which appellants replied “None,” and contained the following statement which was signed by appellants without entering anything on the reverse of the form:
“The supplier has not given or received and will not give or receive by way of side payment, ‘kickbacks,’ or otherwise, any benefit in connection with said contract except as is disclosed on the reverse of this form.”
Appellants paid 10% of invoice prices to importers of the pharmaceutical products for what they called “promotion allowances.” Besides these regular payments appellants also paid from time to time various personal expenses of the importers including, for example, airplane tickets, hospital expenses, and transportation of an automobile.
Appellants also made regular payments of 2% of invoice price to one of the officials of its supplier.
Moreover, appellants received a 20% commission for acting as agent for their supplier.
It is obvious that appellants gave and received “benefits” some of which are also properly to be classified as “commissions,” “side payments” and “kickbacks.” Their failure to disclose these payments on the AID form clearly constituted a violation of Section 1001.
Affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Donald BOWMAN, Petitioner, v. R. W. ALVIS, Warden, Ohio State Penitentiary, Respondent.
No. 12442.
United States Court of Appeals Sixth Circuit.
Feb. 4, 1955.
See, also, 224 F.2d 275, affirming the order of the District Court, Lester L. Cecil, District Judge, denying writ of habeas corpus, and 350 U.S. 949, 76 S.Ct. 324, denying certiorari.
James G. Andrews, Jr., Cincinnati, Ohio (appointed by the Court), for petitioner.
C. William O’Neill, Atty. Gen. of Ohio, for respondent.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
PER CURIAM.
The petitioner was tried, convicted, and sentenced in the court of common pleas of Richland County, Ohio, on the 10th day of June, 1948. After the filing of many petitions in the district court of the United States for the southern district of Ohio for writs of habeas corpus, which were denied, and for leave to appeal in this court, which was also denied on the ground that he had not exhausted his State remedies, he has now as of December 16, 1954, filed a petition to appeal from an order of the Honorable Lester L. Cecil, United States District Judge for the said district, which was returned to him by an order of the court because it failed to show that the petitioner had exhausted his State remedies and because no certificate of probable cause had been issued by the said District Judge.
The petitioner now, by supplemental petition, urges that he was unable to pursue his remedies in the State court because as a pauper he was unable to prepay the costs required by the Rules of Practice of the Ohio Supreme Court, Nos. VII and XVII appearing in 157 Ohio State. His supplemental petition, therefore, presents a question as to whether Ohio provides an effective remedy for the review of State judgments in circumstances here presented.
In our order of December 16, 1954 we directed that the several petitions now lodged with the court may be filed, that the petitioner may proceed in forma pauperis, and that the clerk be directed to secure counsel for said petitioner, who may intelligently present his grievances to this court, directed to the question whether the state of Ohio makes available adequate remedies for the review of judgment, and whether there is adequate ground for the issue by this court of a certificate of probable cause to appeal.
Such counsel was appointed and has now presented a Memorandum which fairly indicates that there is no provision in the Rules of Practice of the Ohio Supreme Court for an indigent prisoner to file an appeal to such court without paying the docket fee and the costs of the action, and that a pauper’s affidavit addressed to that court is not acceptable. It is, therefore, the view of this court that the Ohio Supreme Court does not provide an adequate remedy for the prosecution of an appeal from the State courts of Ohio and its failure so to provide gives the District Court of the United States jurisdiction to entertain a writ for habeas corpus and that upon its denial there is sufficient probable cause for an appeal therefrom. Therefore, we hereby grant to the petitioner a certificate of probable cause to appeal and the clerk of this court is directed to obtain counsel for the petitioner to prosecute such appeal and, when perfected, such appeal will be placed upon the hearing docket of this court at a convenient date.
It is so ordered.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Thomas H. FITZGERALD, Plaintiff-Appellant, v. Martin P. CATHERWOOD, as Industrial Commissioner of the State of New York, Defendant-Appellee.
No. 212, Docket 31209.
United States Court of Appeals Second Circuit.
Argued Nov. 30, 1967.
Decided Jan. 2, 1968.
Bernard H. Fitzpatrick, New York City (Butler, Fitzpatrick & De Sio, New York City, Thomas Sheenan, Mineóla, N. Y., of counsel), for appellant.
Joel Lewittes, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellee.
Before MOORE, SMITH and KAUFMAN, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
The issue before us on this appeal is the validity of those provisions of New York’s Labor and Management Improper Practices Act which make it a misdemeanor for an officer of a labor organization to hold a financial interest in an employer whose employees the organization represents. The appellant, Thomas H. Fitzgerald, sought a declaratory judgment in the court below decreeing that the challenged legislation is preempted by the Labor Management Reporting and Disclosure Act of 1959 [LMRDA], 29 U.S.C. § 401 et seq., and that it constitutes a Bill of Attainder in violation of Article I, Section 10 of the United States Constitution. In addition, the complaint sought to restrain the state official charged with administering the act from enforcing the legislation. Judge Cannella denied appellant’s motion for the convening of a three-judge district court and granted summary judgment for the appellee. We affirm.
I.
The facts are undisputed and can be stated briefly. Fitzgerald concededly wears two hats. He is the duly elected president of Theatrical Union Number One [union] (affiliated with International Alliance of Theatrical Stage Employees, A.F.L.-C.I.O.), and is also president and sole stockholder of Sound Associates, Inc., a corporation which has a collective bargaining agreement with the union and employs union members. The union represents workers in the theatrical and television broadcasting industries and is certified by the National Labor Relations Board; Sound Associates is engaged in several phases of these industries concerned in the main with electronic auditory equipment. The state concedes that the union membership was aware of Fitzgerald’s position with Sound Associates when he was elected union president. Indeed, his dual position appears to have been a major issue in the election. It is also conceded that Fitzgerald’s relationship with the union and the corporation constitutes a violation of the New York act. It is clear, moreover, that the ap-pellee has threatened to enforce the penal provisions of the act and has called upon Fitzgerald to divest himself of his interest in Sound Associates (or, we presume, resign his union office). Thus, this is not a ease in which a litigant seeks to enjoin a state prosecution which may never materialize. We are squarely faced, therefore, with the need to evaluate the merits of appellant’s contentions.
II.
Whatever may have been the law in the past, no authority need be cited for the clearly accepted principle that Congress has the power to regulate labor relations — including the qualifications for, and the fiduciary obligations of, union office — in industries affecting interstate commerce. We state this at the outset to clarify what we are not concerned with — the extent of national power. Instead, we must direct our attention to the scope and limitations of the actual regulation. There is little doubt that when Congress indicates an intent to preempt an area over which there is federal jurisdiction, the Supremacy Clause of the Constitution precludes the states from legislating in that field. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 229-230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). But, the Supreme Court has given us this caveat:
“[i]n areas of the law not inherently requiring national uniformity * * * state statutes, otherwise valid, must be upheld unless there is found ‘such actual conflict between the two schemes of regulation that both cannot stand in the same area, [or] evidence of a congressional design to preempt the field.’ ” Head v. New Mexico Board of Examiners, 374 U.S. 424, 430, 83 S.Ct. 1759, 1763, 10 L.Ed.2d 983 (1963) (citation and footnote omitted).
That the federal and state enactments may serve the same end is not determinative of the question. Before finding preemption “we must be able to conclude that the purpose of the federal statute would to some extent be frustrated by the state statute.” Colorado Anti-Discrimination Commission v. Continental Air Lines, 372 U.S. 714, 722, 83 S.Ct. 1022, 1026, 10 L.Ed.2d 84 (1963). See also Nash v. Florida Industrial Commission, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (Dec. 5, 1967). With this principle in mind, we conclude that there is no conflict between the LMRDA and the challenged provisions of the New York act.
The federal and state statutes — both passed in 1959 — were designed to impose curbs on a variety of corrupt practices by union officials which had come to light in various investigations. Compare 29 U.S.C. § 401, with N.Y. Labor Law § 720. Accordingly, both statutes contain provisions dealing with the fiduciary responsibilities of officers and agents of labor organizations. 29 U.S.C. § 501; N.Y. Labor Law §§ 722-723. We do not understand the áppellant to maintain that there is a conflict between the fiduciary provisions of the two laws. Indeed, such a contention would have little merit. Section 501 of the LMRDA imposes a duty on all union officials “to refrain from dealing with such organization [the unions they represent] as an adverse party * * * and from holding or acquiring any pecuniary or personal interest which conflicts with the interest of such organization.” And, the Congressional debates disclose that “the principle of fiduciary responsibility is violated whenever a union officer acquires an interest in a business concern with which he engages in collective bargaining as an employees’ representative.” Since the New York legislation merely imposes an additional remedy if a union officer acquires such an interest, it can hardly be said to frustrate the Congressional purpose.
Appellant’s contention, however, has more subtlety. He argues that the state law conflicts with the election provisions of the LMRDA. In particular, he urges that Section 401(e), 29 U.S.C. § 481(e), which provides in relevant part, that
“every [union] member in good standing shall be eligible to be a candidate and to hold office”
and Section 403, 29 U.S.C. § 483, which states that
“[n]o labor organization shall be required by law to conduct elections * * * in a different form or manner than is required by its own constitution or by-laws, except as otherwise provided by this subchapter”
manifests a Congressional intent to bar the states from imposing additional qualifications for holding union office. And, he directs our attention to statements in the legislative history which he says make it evident that Congress recognized a need for national uniformity in the laws governing union elections, S. Rep. No. 187, 86 Cong., 1st Sess. 21-22 U.S. Code Congressional and Administrative News, p. 2318 (1959); that Congress had decided to leave to the union members themselves the responsibility of deciding who could or could not be trusted with union office particularly where the possible conflicts of interest had been disclosed pursuant to the reporting and disclosure provisions of the act, Id. at 16.
The Industrial Commissioner’s response to this claim is that the New York enactment does not prohibit any union member from being elected to union office ; it merely imposes fiduciary obligations upon those elected. He urges that a duly elected officer can comply with the requirements of the New York law without in any way violating his duties under the LMRDA. All he need do is to divest himself of his financial interest in the employer — the very thing the Commissioner requested Fitzgerald to do in this case. The question remains, therefore, whether there is any reason to preclude the state from legislating in this area which concerns itself principally with possible interest conflicts or from enforcing its fiduciary requirements by means of the criminal law.
The legislative history of the LMRDA discloses considerable time and thought devoted to the relationship inter se of federal and state law and to the problem of federal preemption. Congress provided different solutions in different sections of the act. Professor Summers has stated:
“The relationship of federal and state remedies in union elections is totally different from that in other areas, for title IV [dealing with elections] proceeds from opposite premises. In direct contrast to * * * [those provisions] which permit each state to superimpose its rights and remedies on a federal guaranteed minimum, title IV constitutes a comprehensive code which is to provide a single uniform body of law.” Summers, Pre-emption and the Labor Reform Act — Dual Rights and Remedies, 22 Ohio St. L. J. 119, 135 (1961).
Congress was obviously concerned not to make it unduly burdensome or even impossible for unions functioning in several states to comply with- a myriad of conflicting election laws. S. Rep. No. 187, 86th Cong., 1st Sess. 21-22 (1959). The focus of attention was on the need to have uniform rules governing the procedural aspects of union elections. Thus, the Senate committee report cited as an example of its concern the undesirability of having too frequent elections for this could result in instability in collective bargaining relationships with employers. Ibid.
Congress’ solution to the problem of the relationship of federal and state law was quite different when it dealt with fiduciary obligations. It sought to establish a federal minimum norm and did not intend to reduce or interfere with obligations imposed by state law. 105 Cong. Rec. 5856-61 (daily ed. April 23, 1959); Summers, Pre-emption and the Labor Reform Act, supra, at 140. Accordingly, Section 603(a), 29 U.S.C. § 523(a) provides that:
“Except as explicitly provided to the contrary, nothing in this chapter shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization * * * under any other Federal law or under the laws of any State * * * ”
And this section — which has been described as “an express disclaimer of preemption of state laws regulating the responsibilities of union officials, except where such preemption is expressly provided,” De Veau v. Braisted, 363 U.S. 144, 157, 80 S.Ct. 1146, 1153, 4 L.Ed.2d 1109 (1960) (plurality opinion) — originated as a savings clause incorporated in the fiduciary obligation provision added during the Senate debate. 109 Cong. Rec. 5860 (daily ed. April 23, 1959). See Summers, Pre-emption and the Labor Reform Act, supra, at 140.
The divergent treatment of preemption with respect to the election and fiduciary sections of the LMRDA is not difficult to rationalize. There does not appear to be a pressing need for national uniformity in defining or safeguarding fiduciary responsibilities. Conflict-of-interest laws set down standards of acceptable or objectionable behavior. We cannot conceive of any unreasonable burden placed upon union officers required to comply with the fiduciary requirements of the various states in which their unions function. This is especially true where, as here, the state enactment merely imposes a different remedy for behavior that lies within the scope of the federal act. The mandate of Section 603(a) seems apparent to us.
Appellant insists, however, that even if the LMRDA permits the states to impose additional fiduciary obligations on union officers, it does not permit them to enforce those obligations by means of the criminal law. To shore up his argument he points to Section 504(a), 29 U.S.C. § 504(a), which disqualifies two classes of persons from holding union office — communists and certain felons— and to Section 604, 29 U.S.C. § 524, which provides that nothing in the LMRDA shall be construed to impair the authority of the states to enforce general criminal laws concerned with certain specified offenses. Since, the appellant urges, the violation of fiduciary obligations is not one of those listed in Section 604, Congress intended to bar the states from enacting criminal penalties in that area.
But, as we have noted, Section 603(a) is a clear disclaimer of an intent to preempt “except as explicitly provided to the contrary,” and we do not read Section 604 as an explicit limitation of the recognition of state power in Section 603. On the contrary, both sections invite the exertion of state jurisdiction. We see no reason to attribute to Congress an unstated intent to limit the power of the states to legislate in the area of fiduciary responsibility merely because it declared that it did not mean to interfere with the enforcement of general criminal laws. When Congress intended to preempt state law under LMRDA, it left no doubt on that score. For example, Section 205(c), 29 U.S.C. § 435(c), states that “[n]o person shall be required by reason of any law of any State to furnish to any officer or agency of such State any information included in a report filed [pursuant to the LMRDA] * *
We are fortified in our conclusion that the LMRDA does not preempt the challenged New York legislation by its legislative history. Frequent references to the state act are made throughout and its merits were discussed during debates in which the relationship of federal and state law was the issue. We recognize, of course, that the determination of Congressional intent is a hazardous undertaking. And we would be hesitant to infer from the discussion of the New York legislation a determination not to preempt the field were it not for the extensive attention given by Congress to the relationship between federal and state law. Under these circumstances we are impelled to the conclusion that if Congress intended to bar the type of provision New York had enacted, it would have said so explicitly or implicitly. Instead, it provided us with a broad savings clause expressly disclaiming preemption in the area of fiduciary responsibilities.
Nor do we regard Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 5. Ct. 1373, 89 L.Ed. 1782 (1945) as requiring a contrary result. The Court held that the collective bargaining regulations of the National Labor Relations Act [NLRA], 49 Stat. 449, preempted a state statute which provided that no one shall be licensed as a business agent of a labor union who has not been a citizen of the United States for more than 10 years, who has been convicted of a felony or who is not a person of good moral character. The Court reasoned that the statute interfered with the “full freedom” of the union members to choose their agents as guaranteed by the NLRA. Id. at 541, 65 S.Ct. 1373. But, the continued vitality of Hill on this point may be questioned in light of the Court’s subsequent holding in De Veau v. Braisted, supra, that neither the NLRA nor the LMRDA preempted a New York statute which disqualified any person who had been convicted of a felony (and who was not subsequently pardoned) from holding office in ariy waterfront labor organization. In any event, general observations are not particularly helpful in solving the problem posed. The question of preemption can be answered only after consideration of the particular statutes involved, their legislative history and the underlying policy considerations. This is especially so where, as here, the statute was not drafted in a vacuum but with an eye on the problem of preemption.
III.
Appellant also argues vigorously that New York Labor Law § 723 constitutes a Bill of Attainder; it is, he says, an illegitimate “exercise in specification” since it is a legislative condemnation of a political group — characterized by appellant as “employer-man.” Appellant places major reliance on United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) in which the Court held that Section 504 of the LMRDA — insofar as it bars any person from being an officer of a labor organization during or for five years after the termination of his membership in the Communist Party — constitutes a Bill of Attainder.
But in Brown the Court was careful to distinguish conflict-of-interest laws of which Section 723 is an example, and indicated that its holding was not contrary to Board of Governors of Federal Reserve System v. Agnew, 329 U.S. 441, 67 S.Ct. 411, 91 L.Ed. 408 (1947). In Agnew, the Court applied Section 32 of the Banking Act of 1933, 12 U.S.C. § 78, which, inter alia, barred any officer of a business enterprise engaged in certain financial transactions from serving as an officer of a member bank of the Federal Reserve System. And, the Brown Court stated the Section 32 of the Banking Act differed from Section 504 of the LMRDA on three grounds — all of which also serve to differentiate New York Labor Law § 723. First, Section 504 “inflicts its deprivation upon the members of a political group thought to present a threat to the national security.” 381 U.S. at 453, 85 S.Ct. at 1717. Second, the Banking Act “incorporates no judgment censuring or condemning any man or group of men. * * * [Congress] concluded that the concurrent holding of two designated positions would present a temptation to any man — not just certain men or members of a certain political party.” 381 U.S. at 453-454, 85 S.Ct. at 1717. (Emphasis in original.) Third, the Banking Act establishes an objective standard of conduct based on the determination that any person who held both positions “might well be tempted” to use his influence in one position to further his interest in the other. Ibid. We are of the view that New York Labor Law § 723 and Section 32 of the Banking Act deal with comparable interest conflict problems. In sum, we see nothing in Brown to indicate that New York is precluded from making — and acting upon— the eminently reasonable judgment that a person who represents both the employer and the employees at a collective bargaining table “might well be tempted” to use his position as a union officer to further his interests as an employer or that consciously or subconsciously he will be prevented from serving only the best interests of the union members.
IV.
Finally, appellant contends that the District Court should have summoned a statutory three-judge court, 28 U.S.C. §§ 2281, 2284. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), however, is clear authority that a three-judge court need not be convened in Supremacy Clause cases involving only federal-state statutory conflicts. Moreover, Fitzgerald’s contention that a three-judge court should have heard his claim that the New York legislation constitutes a Bill of Attainder is without merit since it has long been settled that even when the challenge to a state statute is based on a substantive provision of the federal Constitution a three-judge court need not be convened if the claim is “insubstantial.” Id. at 115, 86 S.Ct. 258. And, a contention is insubstantial if it is obviously devoid of merit or if it is barred by decisions of the Supreme Court. Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933) (per curiam,). We agree with the District Court that under the above criteria appellant’s Bill of Attainder argument is insubstantial.
Affirmed.
. New York Labor Law, McKinney’s Con-sol.Laws, c. 31, § 723 provides:
1. Without limiting his fiduciary obligation provided in section seven hundred twenty-two, it shall constitute a violation of his fiduciary obligation for an officer or agent of a labor organization:
(a) To have, directly or indirectly, any financial interest in any business or transaction of either an employer whose employees his labor organization represents or seeks to represent for purposes of collective bargaining, or an employer who is in the same industry as such an employer;
(b) To have, directly or indirectly, any financial interest in the business or transaction of any person who sells to, buys from, or otherwise deals with (i) an employer whose employees his labor organization represents or seeks to represent for purposes of collective bargaining, or (ii) an employer organization which represents such employer, or (iii) an employer who is in the same industry as such an employer;
New York Labor Law § 725 provides:
4. Each wilful and knowing violation of any of the provisions of sections seven hundred twenty-three or seven hundred twenty-four of this article shall constitute a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both.
. Art. I § 10 provides in pertinent part that: “No State * * * shall pass any Bill of Attainder.”
. 105 Cong.Rec. 14213 (daily ed. Aug. 11, 1959) (speech of Representative Elliot). The wording of Section 501, as enacted, precisely conforms with the fiduciary responsibility provision of the bill sponsored by Representative Elliot. The Elliot Bill was reported by the House Committee on Education and Labor but the Landrum-Griffin Bill was substituted on the floor of the House by way of amendment. See Dugan, Fiduciary Obligations Under the New Act, 48 Geo.L.J. 277, 291 (1959).
. See, e. g., 105 Cong.Rec. 5319-20 (daily ed. April 22,1959).
. The offenses specified in Section 604 —of which robbery, arson and rape are typical — are precisely those for which conviction bars an individual from holding union office (for five years after the end of his imprisonment) under Section 504. The purpose of Section 604 was to make it manifestly clear that the numerous references in the LMRDA to various offenses was not intended to impair the power of the states to enforce their general criminal laws. 105 Cong.Rec. 5991 (daily ed. April 24, 1959) (statement of Senator Morse). Senator Morse also stated that:
“[w]ithout the amendment [ultimately Section 604] it might be possible to argue that any State statute dealing with matters specifically covered in the bill — such as the provisions limiting the tours of office of union officers — would be valid if enacted as a criminal statute.” Ibid.
But, as the example makes plain, the concern was with those areas of the act where Congress had decided to preempt state power. Nothing in Senator Morse’s statement suggests that where Congress specifically recognized state power to legislate, it sought in any way to impose limitations on the remedy the state could provide. On the contrary,'Senator Morse carefully noted that:
“Other sections of this bill refer specifically to the respective responsibilities of State and Federal Governments with regard to the subject matter covered by the bill. Nothing in this section 604 is to be construed as altering those divisions of governmental responsibility as therein defined.” Ibid.
. See, e. g., 105 Cong.Rec. 6667 (daily ed. May 5, 1959) (statement of Senator Morse criticizing New York’s legislation); 105 Cong.Rec. 5857-58 (daily ed. April 23, 1959) (statement of Senator Carroll approving the New York act).
. In addition, the state statute in Hill not only served as an absolute prohibition against those listed from holding union office but in enforcing the statute the state enjoined the union from functioning as a labor organization under the NLRA. 325 U.S. at 543, 65 S.Ct. 1373. The legislation challenged in the instant case does not interfere with the LMRDA in a comparable manner: it is not alleged that the state has threatened to enjoin the union from functioning as a labor organization and Fitzgerald has not been absolutely barred from holding union office. New York only demands that a person who has been elected to union office not serve two masters at the same time.
. The Court in Brown was particularly solicitous of individual rights because it was concerned with an area of political association. See Note, The Supreme Court: 1964 Term, 79 Harv.L.Rev. 56, 122-123 (1965).
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_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.
TEXAS CO. v. WALL et al.
No. 6943.
Circuit Court of Appeals, Seventh Circuit.
Oct. 26, 1939.
June C. Smith, Hugh V. Murray, Jr., and William C. Stephens, all of Centralia, Ill., for appellants.
Henry I. Green, of Urbana, Ill., Enos L. Phillips and Oris Barth, both of Urbana, Ill., and Walter E. Will, of Mattoon, Ill. (J. H. Hill, of Tulsa, Okl., and Green & Palmer, of Urbana, Ill., of counsel), for appellee.
Before ' SPARKS, MAJOR, and TREANOR, Circuit Judges.
TREANOR, Circuit Judge.
This is an appeal from a decree of injunction entered by the District Court for the Eastern District of Illinois. The decree enjoined and restrained defendants-appellants, Clark, Wall and Bresnahan, from entering upon any part of a certain twenty-acre tract of land for the purpose of mining or operating for oil or gas or laying pipe lines or building tanks or other structures thereon to produce oil or gas so long as the oil and gas lease of the plaintiff, Texas Company, remained in force.
Plaintiff is the holder and owner of an oil and gas lease made by Clyde Lee and wife dated March 29, 1937, and duly recorded. The real estate is described in the lease as follows: “The N. % of the SW. % of the S. E. %, except about twenty-five hundredths of one acre on the west side deeded to the Centraba Water Works Co. of Section 33, Township 2 N., Range 2 E..and containing 19 75/100 acres, more or less.” Defendant Clark is the named lessee, and Wall and Bresnahan the named lessors, in an oil and gas lease in which the leased property is described as a strip of land 16% feet in width off the west end of the parcel of land described in the lease of Lee and wife to plaintiff. Defendants. Wall and Bresnahan claim title to said 16% foot strip located on the west side of the twenty-acre tract under a quit claim-deed dated December 8, 1938, which was executed and delivered by William A. Sands and wife. The deed describes the conveyed premises as follows: “Sixteen and one-half (16%) feet off the West side of the North Half of the Southwest Quarter (SW%) of the Southeast Quarter (SE%) of Section Thirty-three (33)» Township Two (2) North, Range Two (2) East of the Third Principal Meridian, and containing one-fourth (%) acres, more or less * * * ”
Defendant Clark entered upon the 16%. foot strip, erected an oil derrick thereon, and began drilling for oil or gas. Plaintiff claims that the acts of Clark constitute a continuing trespass on the rights of plaintiff under the lease of which he is-the holder and owner. ■
Common source of title under which, each party claims is William A. Sands, who purchased the twenty-acre tract involved in this suit at a sale in partition. Sands acquired title under a Master’s deed' dated June 21, 1911, and filed for record on the same date, which was the date on-which the court approved the sale which, had been made May 20, 1911. In anticipation of becoming the owner of the tract Sands agreed with the representatives of the City of Centraba, Illinois, and the Centraba Water Company that he would convey to the Water Company that portion of the tract which the company would require in connection with the construction- and maintenance of its reservoir. Also-prior to the acquiring of title to the tract he. agreed to convey it to. one Oscar Farthing, less -what he should be required to convey to the Water Company in pursuance of his agreement.
At the time of the foregoing negotiations and subsequent conveyances the Water Company was constructing a dam below the land in question for the purpose of creating a water reservoir and was engaged in establishing the boundaries of the land which would be needed to create and maintain the reservoir. Under date of May 27, 1911, Sands executed a warranty deed to Oscar Farthing which was delivered and filed for record June 21, 1911, and which purported to convey the following premises: “The N % of the S. W. % of the S. E. % of Section 33, Township 2 North Range 2 East of the 3rd P. M., except about (25/100) acres on the Westerly side to be deeded to the Centraba Water Works Co., situated in the Township of Salem, Marion County, Illinois.” Under the same date, May 27, 1911, Farthing and wife executed a mortgage which was filed for record June 21, 1911, the premises being described in the mortgage the same as in the deed to Farthing.
Under date of June 6, 1911, Sands and wife executed their warranty deed to the Water Company in compliance with Sands’ promise to which reference has been made. The deed was filed for record July 15, 1911, and contains the following -description of the property conveyed therein: “All that part * * * that is now or shall hereafter be, covered by water in the reservoir of the said Centraba Water Supply Co. to high water mark in ■flood time of said reservoir, as said reservoir is located, surveyed, and staked out, over and upon said tracts of land above •described * * * ”
In addition to the foregoing facts, which are included in the finding of facts, the District Court also found the following:
“The deed from the Master in Chan«cery to Sands, the deed from Sands to Farthing, the mortgage from Farthing to McDonal, the deed from Sands to Elliott, .and the mortgage from Elliott to Mc-Donal, were all filed for record on the •same day, June 21, 1911. The deed from Sands to Centraba Water Supply Company was filed for record July 15, 1911.”
“The transactions by which the water •company acquired its title to the lands proposed to be overflowed and covered ■with the reservoir at high water mark in flood time, and the acquisition of title by Sands, and his sale of both the north and the south half of the Southwest Quarter of the Southeast Quarter of said Section 33, was a series of contemporaneous or related transactions all executed and carried out as a part of the general understanding and agreement between the parties to the deeds, including the water company.”
“A map prepared by the City Engineer of Centraba was introduced in evidence on the trial of this cause, and marked thereon are three boundary lines pertaining to the reservoir created by the Centraba Water Supply Company by the construction of the dam above mentioned. The dam was provided with a spillway from which projections were made of an area which would be covered by water at the height of the spillway in the dam. The high water mark on the twenty-acre tract described as the North Half of the Southwest Quarter of the Southeast Quarter of Section 33, fixed by the level with the top of the spillway, barely extended onto the southern edge of said twenty-acre tract. The high water mark in flood time of said reservoir, as said reservoir was then located, surveyed and staked out over and upon the North Half of the Southwest Quarter of the Southeast Quarter of said Section 33, included an area at or near the southwest corner of said twenty-acre tract of approximately 20/100 of an acre; * * *”
Obviously the decision in this case on the merits depends upon whether Sands retained ownership of the 16% foot strip by force of the exception in his deed to Farthing. Defendants urge that the language “about 25/100 of an acre on the westerly side” of a tract of land necessarily means a uniform strip off the west end of the tract containing 25/100 acres of land; and since a strip 16% feet in width off the west end of the tract would equal 25/100 acres of land they contend that the deed must be construed, as a matter of law, to except from the conveyance by Sands and wife to Farthing such 16% foot strip. The District Court concluded that the language “about 25/100 acres on the westerly side” is not sufficiently certain and definite to require the construction contended for by defendants, and that the uncertainty of meaning required a resort to parol evidence to ascertain the quantum and location of the land excepted. It is clear, as the District Court concluded, that the phrase “to be deeded to the Centraba Water Compan/’ enters into the description of the property excepted and the words necessarily import an understanding between the grantor and grantee that the grantor was under some obligation to convey “about 25/100 acres” to the water company and that the required amount was being excepted. As stated in the memorandum opinion of Lindley, J., “the exception was certain as to an intent to except a specific thing but the exact boundaries and location of that .particular thing were to remain uncertain until they could be made certain by the conveyance to the water company.” If data existed which determined the location and fixed the boundaries of the parcel “to be deeded to the Centraba Water Works Company” in accordance with the understanding • and intention of Sands and Farthing and not inconsistent with the requirement of the deed that there be “about 25/100 acres on the westerly side,” then the District Court properly heard evidence tending to disclose the data.
The general rule is that an exception in a deed of conveyance must contain an identifying description of the land excepted, yet such requirement is satisfied if the language of the exception provides information which, when supplemented by competent extrinsic evidence, satisfactorily identifies the excepted parcel. Physical conditions or objects existing at the time of a grant are most frequently referred to for the purpose of identifying land which is excepted from a grant, but references to acts or agreements of parties relating to the excepted part, or to identifying occurrences, are recognized in the decisions as sufficient if they serve as means of determining the location and boundaries of the parcel which is the subject of the exception. The language of exception in the instant case unequivocally states that the parcel of land excepted comprises about 25/100 acres, that it is located “on the westerly side” of the twenty-acre tract, and that it is a parcel of land which is “to be deeded to the Centraba Water Works Company.” The words “to be deeded to the Centraba Water Works Company” are descriptive of the excepted parcel and constitute the means of determining the excepted part as truly as such expressions as “such portions as were theretofore taken by the railroad as a right of way;” or “some small tracts quitclaimed in settlement in exchange of lands;” or “excepting five lots in first block and second lot in second block, south of the railroad and plank road, as the same shall be hereafter subdivided into village lots by said Day, or his assigns, said lots having been heretofore sold by said Cassady.”
To give effect to the foregoing exceptions it was necessary to resort to extrinsic evidence to determine what land had been “taken by the railroad as a right of way” or what land was embraced in “some small tracts quitclaimed in settlement in exchange of lands” by the grantor, or to determine how the tract of land was “subdivided into village lots by said Day, or his assigns.” In the instant case it was necessary to resort to extrinsic evidence in order to locate and describe the land which the parties understood would be “deeded to the Centraba Water Works Company.”
Assuming competency, it is not material whether the extrinsic evidence consists of official record, written contracts, or parol evidence of agreements. If the exception in the instant case had been of land which Sands had deeded to the Centraba Water Works Co. the best evidence would have been the deed or certified copy of the deed as recorded in the deed records of Marion County, Illinois. But in the instant case the extrinsic evidence must disclose non-record facts from which the land excepted can be identified. If no facts could be shown to exist which defined with sufficient certainty the boundaries of the excepted parcel, the exception would fail. But extrinsic evidence disclosed that Sands had promised to convey to the Water Works Company that portion of the twenty-acre tract which it would require in connection with the construction and maintenance of its reservoir; also that the water company was constructing a dam below the land in question for the purpose of creating the reservoir and was engaged in surveying and establishing the boundaries of the land which would be needed to create and maintain the reservoir; and the extrinsic evidence also disclosed that the determination of the boundaries of the land which would be needed by the Centraba Water Works Co. in connection with the maintenance of the reservoir involved an engineering computation based upon known data. The extrinsic evidence also established that Sands, grantor, and Farthing, the grantee, understood the foregoing facts and understood that the language of the exception was used for the purpose of giving effect to such understanding.
We conclude that the exception was valid and that Farthing was vested with title to the twenty-acre tract less the area which should at any time be covered with water in the reservoir of the Centralia Water Company “to high water mark in flood time of said reservoir as said reservoir” was “located, surveyed and staked out” at the time of the conveyance by Sands to Farthing and by Sands to the Centralia Water Company, the excepted area being more particularly described in the deed of conveyance to the Centralia Water Company. By the two conveyances Sands parted with title to all his interest in the twenty-acre tract.
Our discussion has anticipated the further contention of defendants that the deed from Sands to the Centralia Water Company describing the land conveyed as bounded by the high water mark in the reservoir at flood stage is too indefinite and uncertain to constitute a conveyance. This contention is based upon the fact that the only line that could be established, located or known when the deed was made was. the level of the top of the spillway and, consequently, the reference in the deed to the “high water mark in flood time” was wholly meaningless. ■ But the testimony of the city engineer establishes that the high water mark in flood time would be one foot above the water line when the water in the reservoir stood at the spillway level. He estimated the area which would be covered by water in flood time of the reservoir, with the top of the spillway at the height established in 1911, would be about 20/100 of an acre. We are of the opinion that in view of the foregoing the description of the land in the deed of Sands to the Centralia Water Company satisfied the requirements of certainty of description for a valid conveyance.
The District Court stated as a conclusion of law that between the date of the deed to Farthing and that of the deed to the water company Sands and Farthing were co-tenants of undivided portions of the land and that upon the execution of the deed by Sands to the water company the undivided portions were ascertained, identified and divided as the parties contemplated at the time the- land was conveyed to Farthing. But the defendants urge that even though Farthing and Sands became tenants in common of the entire twenty acres, still the deed by Sands to the Centralia Water Supply Company could not change or alter the ownership of Sands and Farthing in the land as tenants in cqmmon without the consent of Farthing, the other joint owner, or his grantees. The evidence, however, clearly supports the finding of the trial court that the acquisition of title by Sands, the transactions by which the water company acquired its title to the land proposed to be overflowed and covered with the reservoir at high water mark in flood time, and Sands’ conveyance to Farthing, constituted a series of contemporaneous or related transactions all executed and carried out as a part of the general understanding and agreement between the parties to the deeds, including the water company. Sands, Farthing and the Water Company understood that the land excepted in the deed to Farthing would be conveyed to the Water Company.
Farthing recognized in his purchase money mortgage and later in his deed of conveyance to Lee, the present owner, that the excepted portion of the twenty-acre tract was to be deeded to the Water Company. When Sands conveyed the excepted land he was carrying out the understanding of the interested parties, — Sands, Farthing and the Centralia Water Supply Company.
Defendants question the District Court’s jurisdiction. This point was not urged to the trial court. The contention is made that the lessor of the plaintiff, is an indispensable party and should have been made a party plaintiff, with the result of ousting the jurisdiction of the District Court. In support of the foregoing contention the defendants rely heavily upon South Penn Oil Co. v. Miller and McConnell v. Dennis.
We are not prepared to say that the language and the assumptions of the two foregoing cases do not furnish some support for the contention that the lessor of the plaintiff is an indispensable party. The McConnell decision clearly is authority for holding that the lessors of the defendants in the instant case are indispensable parties; but the plaintiff joined them as defendants. The South Penn Oil Co. case can be distinguished by the fact that in that case the controversy involved the ownership of about 20,000 barrels of oil in which the lessor had a present interest. The opinion in the McConnell case does not reveal the scope of the pleadings, but the effect of the decree obviously is to prevent the defendant-lessee from complying with his obligations to his lessor. If the relief granted in a decree of injunction against the lessee is of such a character that the defendant is legally bound to refrain from acts to which his lessor, by the- terms of the lease, is entitled, it is difficult to escape the conclusion that the decree leaves the controversy in such a condition that the interest of the defendant’s lessor is seriously affected. But when a plaintiff-lessee is seeking merely to enjoin a defendant-lessee from interfering with the plaintiff’s leasehold interest, and no relief is sought either for or against the plaintiff’s lessor, the decree of the trial court ordinarily can be so framed as not to affect the rights of the plaintiff’s lessor.
In the instant case the plaintiff’s complaint does not ask for any relief for or against his lessor and the decree of the District Court is carefully limited in its legal effect to the parties before the court. The defendants are enjoined only from such acts as affect the leasehold interest of the plaintiff; and the injunction is limited in duration to the period of time that the oil and gas lease of the plaintiff-lessee remains in force. No legal restraint is put upon the performance by plaintiff-lessee of his lease obligations to his lessor; and the lessor is legally free to protect his interests as against both his lessee and the defendants, lessee and lessors. And the foregoing would be true even if the District Court had found against the plaintiff-lessee and denied his prayer for injunction.
One is not an indispensable party to a suit merely because he has a substantial interest in the subject matter of the litigation, nor is one an indispensable party even though one’s interest in the subject matter of the litigation is such that his presence as a party to the suit is required for a complete adjudication in that suit of all questions related to the litigation. The test as suggested in Waterman v. Canal-Louisiana Bank & Trust Co. may be stated thus: Is the absent person’s interest in the subject matter of the litigation such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the rights of such absent person?
On the pleadings and facts of this case the District Court properly could enter, and did enter, a decree which did justice between the parties actually before the court without injuriously affecting the rights of the absent plaintiff-lessor.
In our opinion the plaintiff’s lessor was not an indispensable party and we so hold.
Judgment affirmed.
Rio Grande Western R. Co. v. Salt Lake Inv. Co., 35 Utah 528, 101 P. 586.
Mills v. Edgell, 69 W.Va. 421, 71 S.E. 574, 575.
Rockafeller v. Arlington, 91 Ill. 375.
4 Cir., 175 P. 729.
8 Cir., 153 F. 547.
215 U.S. 33, 49, 30 S.Ct. 10, 14, 54 L.Ed. 80. “If the court can do justice to the parties before it without injuring absent persons, it will do so, and shape its relief in such a manner as to preserve the rights of the persons not before the court. If necessary, the court may require that the bill be dismissed as to such absent parties, and may generally shape its decrees so as to do justice to those made parties, without prejudice to such absent persons.” (Citing Payne v. Hook, 7 Wall 425, 19 L.Ed. 260.)
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
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sc_adminaction_is
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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 administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES, Petitioner
v.
Edith Schlain WINDSOR, in her capacity as executor of the Estate of Thea Clara Spyer, et al.
No. 12-307.
Supreme Court of the United States
Argued March 27, 2013.
Decided June 26, 2013.
Vicki C. Jackson, appointed by this Court, as amicus curiae, by Sri Srinivasan, for Petitioner.
Paul D. Clement, for Respondent Bipartisan Legal Advisory Group of the United States House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Washington, D.C., for United States on the Jurisdictional Questions.
Roberta A. Kaplan, for Respondent Edith Schlain Windsor.
Pamela S. Karlan, Jeffrey L. Fisher, Stanford, CA, James D. Esseks, Rose A. Saxe, Joshua A. Block, Leslie Cooper, Steven R. Shapiro, New York, NY, Roberta A. Kaplan, Walter Rieman, Jaren Janghorbani, Colin S. Kelly, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Arthur Eisenberg, Mariko Hirose, New York, NY, for Respondent Edith Schlain Windsor.
Kerry W. Kircher, General Counsel, William Pittard, Deputy General Counsel, Christine Davenport, Senior Assistant Counsel, Todd B. Tatelman, Mary Beth Walker, Eleni M. Roumel, Assistant Counsels Office of General Counsel, Washington, D.C., Paul D. Clement, H. Christopher Bartolomucci, Nicholas J. Nelson, Michael H. McGinley, Bancroft PLLC, Washington, D.C., for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Principal Deputy Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Michael Jay Singer, August E. Flentje, Helen L. Gilbert, Adam C. Jed, Washington, D.C., for the United States on the Jurisdictional Questions.
Justice KENNEDY delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of "spouse" as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor's favor.
I
In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U.S.C. § 1738C.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, § 7, of the United States Code to provide a federal definition of "marriage" and "spouse." Section 3 of DOMA provides as follows:
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word'marriage' means only a legal union between one man and one woman as husband and wife, and the word'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. § 7.
The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment's comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO-04-353R, 2004).
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer's health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one. See 699 F.3d 169, 177-178 (C.A.2 2012).
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation "any interest in property which passes or has passed from the decedent to his surviving spouse." 26 U.S.C. § 2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a "surviving spouse." Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U.S.C. § 530D, that the Department of Justice would no longer defend the constitutionality of DOMA's § 3. Noting that "the Department has previously defended DOMA against... challenges involving legally married same-sex couples," App. 184, the Attorney General informed Congress that "the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny." Id., at 191. The Department of Justice has submitted many § 530D letters over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal court has rejected the Government's defense of a statute and has issued a judgment against it. This case is unusual, however, because the § 530D letter was not preceded by an adverse judgment. The letter instead reflected the Executive's own conclusion, relying on a definition still being debated and considered in the courts, that heightened equal protection scrutiny should apply to laws that classify on the basis of sexual orientation.
Although "the President... instructed the Department not to defend the statute in Windsor, " he also decided "that Section 3 will continue to be enforced by the Executive Branch" and that the United States had an "interest in providing Congress a full and fair opportunity to participate in the litigation of those cases." Id., at 191-193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to "recogniz[e] the judiciary as the final arbiter of the constitutional claims raised." Id., at 192.
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of § 3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG. The District Court denied BLAG's motion to enter the suit as of right, on the rationale that the United States already was represented by the Department of Justice. The District Court, however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2).
On the merits of the tax refund suit, the District Court ruled against the United States. It held that § 3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court's judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. The United States has not complied with the judgment. Windsor has not received her refund, and the Executive Branch continues to enforce § 3 of DOMA.
In granting certiorari on the question of the constitutionality of § 3 of DOMA, the Court requested argument on two additional questions: whether the United States' agreement with Windsor's legal position precludes further review and whether BLAG has standing to appeal the case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that the Court lacks jurisdiction to hear the dispute. 568 U.S. ----, 133 S.Ct. 786, 184 L.Ed.2d 527 (2012). She has ably discharged her duties.
In an unrelated case, the United States Court of Appeals for the First Circuit has also held § 3 of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert. in Bipartisan Legal Advisory Group v. Gill, O.T. 2012, No. 12-13.
II
It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here.
There is no dispute that when this case was in the District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. "[A] taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer." Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (plurality opinion) (emphasis deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of § 3 of DOMA.
The decision of the Executive not to defend the constitutionality of § 3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication. Even though the Executive's current position was announced before the District Court entered its judgment, the Government's agreement with Windsor's position would not have deprived the District Court of jurisdiction to entertain and resolve the refund suit; for her injury (failure to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The Government's position-agreeing with Windsor's legal contention but refusing to give it effect-meant that there was a justiciable controversy between the parties, despite what the claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as parties in further proceedings in this Court.
The amicus' position is that, given the Government's concession that § 3 is unconstitutional, once the District Court ordered the refund the case should have ended; and the amicus argues the Court of Appeals should have dismissed the appeal. The amicus submits that once the President agreed with Windsor's legal position and the District Court issued its judgment, the parties were no longer adverse. From this standpoint the United States was a prevailing party below, just as Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits; for the United States seeks no redress from the judgment entered against it.
This position, however, elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The latter are "essentially matters of judicial self-governance." Id., at 500, 95 S.Ct. 2197. The Court has kept these two strands separate: "Article III standing, which enforces the Constitution's case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; and prudential standing, which embodies 'judicially self-imposed limits on the exercise of federal jurisdiction,' Allen [v. Wright, ] 468 U.S. [737,] 751, 104 S.Ct. 3315 [82 L.Ed.2d 556 (1984) ]." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).
The requirements of Article III standing are familiar:
"First, the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural or hypothetical."'Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be 'fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court.' Third, it must be 'likely,' as opposed to merely'speculative,' that the injury will be'redressed by a favorable decision.' "
Lujan, supra, at 560-561, 112 S.Ct. 2130 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flexible "rule[s]... of federal appellate practice," Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), designed to protect the courts from "decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth, supra, at 500, 95 S.Ct. 2197.
In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is "a real and immediate economic injury," Hein, 551 U.S., at 599, 127 S.Ct. 2553, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court's order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with § 3 of DOMA, which results in Windsor's liability for the tax. Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling.
This Court confronted a comparable case in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). A statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute was unconstitutional, and "the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals." Id., at 930, 103 S.Ct. 2764. The INS, however, continued to abide by the statute, and "the INS brief to the Court of Appeals did not alter the agency's decision to comply with the House action ordering deportation of Chadha." Ibid. This Court held "that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take," ibid., regardless of whether the agency welcomed the judgment. The necessity of a "case or controversy" to satisfy Article III was defined as a requirement that the Court's " 'decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.' " Id., at 939-940, 103 S.Ct. 2764 (quoting Chadha v. INS, 634 F.2d 408, 419 (C.A.9 1980) ). This conclusion was not dictum. It was a necessary predicate to the Court's holding that "prior to Congress' intervention, there was adequate Art. III adverseness." 462 U.S., at 939, 103 S.Ct. 2764. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where "the Government largely agree[s] with the opposing party on the merits of the controversy," there is sufficient adverseness and an "adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party." Id., at 940, n. 12, 103 S.Ct. 2764.
It is true that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Roper,supra, at 333, 100 S.Ct. 1166, see also Camreta v. Greene, 563 U.S. ----, ----, 131 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011) ( "As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so"). But this rule "does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted... at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III." Roper, supra, at 333-334, 100 S.Ct. 1166.
While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive's unusual position require some further discussion. The Executive's agreement with Windsor's legal argument raises the risk that instead of a "'real, earnest and vital controversy,' " the Court faces a "friendly, non-adversary, proceeding... [in which] 'a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.' " Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892) ). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail in its position. Unlike Article III requirements-which must be satisfied by the parties before judicial consideration is appropriate-the relevant prudential factors that counsel against hearing this case are subject to "countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power." Warth, 422 U.S., at 500-501, 95 S.Ct. 2197. One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a similar situation. It noted that "there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of [this case] in the absence of any participant supporting the validity of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress." 462 U.S., at 940, 103 S.Ct. 2764. Chadha was not an anomaly in this respect. The Court adopts the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below, even if the confession is in effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of § 3 of DOMA. BLAG's sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA's sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F.3d 1 (C.A.1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA's mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term "prudential" counsels that it is a proper exercise of the Court's responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court's ruling and its affirmance in the Court of Appeals on BLAG's own authority.
The Court's conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive's failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government's agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive's agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President's. This would undermine the clear dictate of the separation-of-powers principle that "when an Act of Congress is alleged to conflict with the Constitution, '[i]t is emphatically the province and duty of the judicial department to say what the law is.' " Zivotofsky v. Clinton, 566 U.S. ----, ----, 132 S.Ct. 1421, 1427-1428, 182 L.Ed.2d 423 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) ). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress' enactment solely on its own initiative and without any determination from the Court.
The Court's jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court's decision to proceed to the merits.
III
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N.Y. Laws 749 (codified at N.Y. Dom. Rel. Law Ann. §§ 10-a, 10-b, 13 (West 2013)).
Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U.S. ----, 133 S.Ct. 1943, 186 L.Ed.2d 43 (2013) ; see also Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981) ; Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950). This is one example of the general principle that when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies to pursue.
Other precedents involving congressional statutes which affect marriages and family status further illustrate this point. In addressing the interaction of state domestic relations and federal immigration law Congress determined that marriages "entered into for the purpose of procuring an alien's admission [to the United States] as an immigrant" will not qualify the noncitizen for that status, even if the noncitizen's marriage is valid and proper for state-law purposes. 8 U.S.C. § 1186a(b)(1) (2006 ed. and Supp. V). And in establishing income-based criteria for Social Security benefits, Congress decided that although state law would determine in general who qualifies as an applicant's spouse, common-law marriages also should be recognized, regardless of any particular State's view on these relationships. 42 U.S.C. § 1382c(d)(2).
Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003) ; An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples, 2009 Conn. Pub. Acts no. 09-13; Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ; Vt. Stat. Ann., Tit. 15, § 8 (2010); N.H.Rev.Stat. Ann. § 457:1-a (West Supp.2012) ; Religious Freedom and Civil Marriage Equality Amendment Act of 2009, 57 D.C. Reg. 27 (Dec. 18, 2009); N.Y. Dom. Rel. Law Ann. § 10-a (West Supp. 2013);
Wash. Rev.Code § 26.04.010 (2012); Citizen Initiative, Same-Sex Marriage, Question 1 (Me. 2012) (results online at http:// www.maine.gov/sos/cec/elec/2012/tab-ref-2012.html (all Internet sources as visited June 18, 2013, and available in Clerk of Court's case file)); Md. Fam. Law Code Ann. § 2-201 (Lexis 2012) ; An Act to Amend Title 13 of the Delaware Code Relating to Domestic Relations to Provide for Same-Gender Civil Marriage and to Convert Existing Civil Unions to Civil Marriages, 79 Del. Laws ch. 19 (2013); An act relating to marriage; providing for civil marriage between two persons; providing for exemptions and protections based on religious association, 2013 Minn. Laws ch. 74; An Act Relating to Domestic Relations-Persons Eligible to Marry, 2013 R. I. Laws ch. 4.
In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ; but, subject to those guarantees, "regulation of domestic relations" is "an area that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942) ("Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders"). The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the "[p]rotection of offspring, property interests, and the enforcement of marital responsibilities." Ibid. "[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906) ; see also In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) ("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States").
Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), for example, the Court held that, "[t]o decide who is the widow
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_genresp1
|
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.
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.
The ATTORNEY GENERAL OF the TERRITORY OF GUAM on Behalf of ALL U.S. CITIZENS RESIDING IN GUAM QUALIFIED TO VOTE PURSUANT TO the ORGANIC ACT, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 83-1890.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 16, 1984.
Decided July 24, 1984.
Suzzane K. Horrigan, Asst. Atty. Gen., Territory of Guam, Agana, Guam, for plaintiffs-appellants.
Edward R. Cohen, Dept, of Justice, Washington, D.C., for defendant-appellee.
Before ANDERSON, SCHROEDER, and ALARCON, Circuit Judges.
SCHROEDER, Circuit Judge.
The plaintiffs in this ease, the Attorney General of Guam and four individuals, sued the United States on behalf of American citizens who are residents of Guam and who are registered to vote in territorial elections. Plaintiffs sought a judgment declaring the right of these citizens to vote in the United States Presidential and Vice Presidential elections. The district court dismissed. We affirm because the complaint failed to state a claim for which relief could be granted.
Guam is an unincorporated territory of the United States, under the plenary control of Congress pursuant to Article IV, section 3 of the Constitution. In 1950, Congress passed the Organic Act of the Territory of Guam, 64 Stat. 384 (codified as amended at 48 U.S.C. §§ 1421-1424 (1976 & Supp. V 1981)), which declared Guam a territory and established its government. The Organic Act incorporated specifically, as part of a bill of rights, the privileges and immunities clause of the Constitution, 48 U.S.C. § 1421b(u), and the equal protection clause of the fourteenth amendment, 48 U.S.C. § 1421b(n). At the same time Congress provided that Guamanians were American citizens. See 8 U.S.C. § 1407 (1982). See generally H.R.Rep. No. 1365, 82d Cong., 2d Sess., reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1734; P. Carano & P. Sanchez, A Complete History of Guam 365-98 (1964).
American citizens who are residents of Guam do not vote in the election of the President or Vice President of the United States, and plaintiffs contend that the ability to do so is a privilege or immunity of citizenship. The Constitution does not grant to American citizens the right to' elect the President, however. Article II, section 1, clause 2 of the United States Constitution provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the States may be entitled in the Congress____
Electors appointed by the states elect the President and Vice President. U.S. Const., Article II, section 1, clause 3. See also Anderson v. Celebrezze, 460 U.S. 780, n. 18, 103 S.Ct. 1564, 1573 n. 18, 75 L.Ed.2d 547 (1983) (“The Constitution expressly delegates authority to the States to regulate selection of Presidential electors....”).
Thus, citizens do not vote for the President. Electors, appointed by “each State,” vote for the President. Although the merits and shortcomings of the electoral college system have been debated over the years, see, e.g., Feerick, The Electoral College—Why It Ought to Be Abolished, 37 Fordham L.Rev. 1 (1968); Rosenthal, The Constitution, Congress, and Presidential Elections, 67 Mich.L.Rev. 1 (1968), it has not been replaced by direct election. The right to vote in presidential elections under Article II inheres not in citizens but in states: citizens vote indirectly for the President by voting for state electors. Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election. There is no constitutional violation.
A constitutional amendment would be required to permit plaintiffs to vote in a presidential election. The District of Columbia experience illustrates this point, for American citizens on Guam are not the first American citizens not residing in states to complain about their inability to vote in presidential elections. Until the passage of the twenty-third amendment to the Constitution, American citizens who lived in the District of Columbia could not participate in presidential elections. The District of Columbia is not a state, but rather is under the exclusive control of Congress pursuant to Article I, section 8, clause 17 of the Constitution.
The twenty-third amendment to the Constitution solved the problem of those citizens by ordering that the District would appoint electors who would “be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State ....” U.S. Const. amend XXIII, § 1. The House Committee on the Judiciary, reporting on the proposed amendment, recognized the obvious barrier of Article II, section 1, when it noted that absent an amendment, “voting rights are denied District citizens because the Constitution provides machinery only through the States for the selection of the President and Vice President. (Art. II, sec. 1).” H.R.Rep. No. 1698, 86th Cong.2d Sess., reprinted in 1960 U.S.Code Cong. & Ad. News 2. The report also observed that “apart from the Thirteen Original States, the only areas which have achieved national voting rights have done so by becoming States as a result of the exercise by the Congress of its powers to create new States pursuant to Article IV, section 3, clause 1 of the Constitution.” Id. See also Sanchez v. United States, 376 F.Supp. 239, 242 (D.Puerto Rico 1974) (suit by American citizens residing in Puerto Rico to vote in presidential elections did not present a substantial constitutional question that would justify convening a three-judge court).
The plaintiffs argue that a constitutional amendment is not necessary because, since the passage of the twenty-third amendment, the Supreme Court has so expansively interpreted Congressional power over federal elections that Congress already has legislated presidential voting rights for American citizens who are not residents of any state. Specifically, plaintiffs point to the decision in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), and the Overseas Citizens Voting Rights Act (OCVRA), 42 U.S.C. § 1973dd (1976 & Supp. V 1981), which relied upon Mitchell for its constitutional basis. Neither Oregon v. Mitchell nor the OCVRA, however, show that Congress has authorized all American citizens, even though not residents of a state, to vote in the presidential election. Both are premised upon the rights of citizens of states.
Oregon v. Mitchell upheld Congressional voting rights legislation which struck down state “durational residency” provisions and substituted nationwide uniform state residency requirements for voting for presidential and vice-presidential electors. Voting Rights Amendments of 1970, Pub.L. No. 89-110, Title II, § 202, as added Pub.L. No. 91-285, § 6, 84 Stat. 316 (codified at 42 U.S.C. § 1973aa-1 (1976)). All of the five opinions in the case assume residency in a state. See 400 U.S. at 124, 91 S.Ct. at 264 (J. Black); 400 U.S. at 147-50, 91 S.Ct. at 276-78 (J. Douglas); 400 U.S. at 213-16, 91 S.Ct. at 309-10 (J. Harlan); 400 U.S. at 237-40, 91 S.Ct. at 321-22 (J. Brennan); 400 U.S. at 285-92 (J. Stewart). This assumption is consistent with the Voting Rights Amendments section on residency requirements, which provides for a nationally uniform system of registration for “all duly qualified residents of [a] State.” 42 U.S.C. § 1973aa-1(d).
The OCVRA preempted state residency voting requirements for disenfranchised American citizens who had been residents of states but, retaining their American citizenship, moved to foreign countries. Under the Act, citizens who live outside this country may vote by absentee ballot in their last state of residency, whether or not they pay taxes in that state and whether or not they have a definite plan to return to that state.
The legislative history of the OCVRA makes clear that it was premised constitutionally on prior residence in a state. With regard to the constitutionality of the Act, a House Report stated:
The Committee believes that a U.S. citizen residing outside the United States can remain a citizen of his last State of residence and domicile for purposes of voting in Federal elections under this bill, as long as he has not become a citizen of another State and has not otherwise relinquished his citizenship in such prior State.
H.R.Rep. No. 649, 94th Cong., 1st Sess. 7, reprinted in 1975 U.S.Code Cong. & Ad. News 2358, 2364. Calling the proposed legislation a “reasonable extension of the bona fide residence concept” based on Mitchell, id. at 6, reprinted in 1975 U.S. Code Cong. & Ad.News at 2363, the House Report stated that the purpose of the bill was to “assure the right of otherwise qualified private U.S. citizens residing outside the United States to vote in federal elections.” Id. at 1, reprinted in 1975 U.S. Code Cong. & Ad.News at 2358.
Plaintiffs’ claim in this case is asserted on behalf of all voters who vote in Guam elections. It is not a claim on behalf of those who have previously qualified to vote in a state election. The OCVRA does not evidence Congress’s ability or intent to permit all voters in Guam elections to vote in presidential elections. The OCVRA rationale simply is inapplicable to the problem plaintiffs raise, and the judiciary is not the institution of our government that can provide the relief they seek.
Affirmed.
. There were additional grounds for the district court’s dismissal. It held that the Territory of Guam does not have standing to bring this lawsuit as parens patriae against the United States. See South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966). It further held that the Assistant Attorney General who was representing Guam was only provisionally admitted to practice before the district court and could not represent the individual plaintiffs, whose standing was not challenged. On appeal the government has not taken issue with appellants’ counsel’s qualification, and we therefore must address the merits of the individual plaintiffs’ claims.
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_usc1
|
49
|
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.
STOP H-3 ASSOCIATION, a Hawaiian non-profit corporation; Life of the Land, a Hawaiian non-profit corporation; Hui Malama Aina O Ko’Olau, Plaintiffs-Appellants, v. Elizabeth DOLE, as Secretary of the United States Department of Transportation; William R. Lake as Hawaii Division Engineer, Federal Highways Administration; and Edward Hirata, as Director of the Department of Transportation of the State of Hawaii, Defendants-Appellees.
No. 87-2204.
United States Court of Appeals, Ninth Circuit.
Argued Nov. 13, 1987.
Decided March 20, 1989.
Boyce R. Brown, Jr., Brown, Johnston & Day, Honolulu, Hawaii, for plaintiffs-appellants.
Kathryn A. Oberly, Sp. Deputy Atty. Gen., State of Hawaii, Mayer, Brown & Platt, Washington, D.C., for defendants-ap-pellees.
Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.
Substitution of officers in their official capacity have been made pursuant to Fed.R.App.P. 43(c).
PREGERSON, Circuit Judge:
I. BACKGROUND
This appeal involves the construction of an interstate highway project in Hawaii which has been the subject of litigation now spanning some sixteen years. The litigation began in 1972, when the Stop H-3 Association sought permanently to enjoin construction of the highway, known as the H-3 project, out of concern for its impact on the environment. That same year the parties worked out a stipulation providing that construction would proceed at both ends of H-3, but would cease in the central portion of the highway pending a trial on the merits. The district court accordingly issued a temporary injunction enjoining work on the project pending resolution of the action. C.R. 43.
The consolidated complaint of the environmental organizations, appellants here, raised a number of issues, two of which are relevant to this appeal. First, appellants contended that appellees had violated the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (“NEPA”), by filing a deficient Environmental Impact Statement (EIS).
Second, appellants maintained that appel-lees had not complied with section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303, and section 18 of the Federal Aid Highway Act of 1968, 23 U.S. C. § 138. These sections contain nearly identical language and are commonly referred to collectively as “section 4(f)” or the “4(f) statutes.” Under section 4(f), the Secretary
shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
The Secretary’s determination that the conditions of section 4(f) are satisfied is known as a “section 4(f) statement.”
The case went to trial in 1974. After the trial, the district court found that appellees had not violated NEPA, section 4(f), or any other federal, state or local provisions. As a result, it lifted the preliminary injunction. Stop H-3 Ass’n v. Brinegar, 389 F.Supp. 1102 (D. Hawaii 1974), rev’d. sub nom. Stop H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). However, on appeal to this court, appellants sought and obtained reimposition of the preliminary injunction. Stop H-3 Ass’n v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976). We held that appellees had failed to comply with section 4(f) before approving the release of federal funds for H-3. Id. at 445. Specifically, we held that the Moanalua Valley, through which H-3 would pass, was protected land; therefore we rejected the Secretary’s argument that section 4(f) did not apply. Id.
Appellees subsequently filed a 4(f) statement for Moanalua Valley, but the Secretary found reasonable alternatives to using that land and did not approve the project. Appellees then decided to reroute H-3 to the north, filing a supplemental EIS (SEIS) and 4(f) statement which the Secretary approved in 1981. In the meantime, the district court continued to enforce the preliminary injunction, holding that the new route was within the purview of the 1972 stipulation.
Appellants challenged the new proposal, raising forty-eight separate claims. Appellants were primarily concerned with the impact of the new route on two protected areas, the Pali Golf Course and Ho’omalu-hia Park. After a 1981 trial on the merits, the district court ruled in favor of appellees on nearly all counts. Most importantly, the district court affirmed the Secretary’s ’determination that there was no prudent alternative to the new proposal, and approved both the EIS and SEIS. Having identified only minor noncompliance with NEPA and section 4(f), the district court decided to lift the preliminary injunction. Stop H-3 Ass’n v. Lewis, 538 F.Supp. 149 (D.Hawaii 1982).
A second appeal to this court ensued, and we once again reimposed the preliminary injunction. We were not convinced that the “Makai Realignment” and the “No Build Alternative” were imprudent. We held that such a determination was an abuse of discretion on the record as it then existed, and remanded the matter to the Secretary for further consideration. We affirmed the district court in all other respects. Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985).
On October 18, 1986, the Continuing Appropriations Bill for Fiscal Year 1987, Pub. L. No. 99-500, 100 Stat. 1783 (later reenacted as Pub.L. No. 99-591, 100 Stat. 3341) became law. Section 114 of this bill, 100 Stat. 1783-349 (later reenacted as 100 Stat. 3341-349), ordered the Secretary to approve construction of H-3 “notwithstanding” section 4(f). On January 16,1987, the Secretary approved the section of H-3’s central portion lying between the Halawa and Kaneohe interchanges, but suspended approval for the small segment lying between the Kaneohe and Halekou interchanges.
Appellees then moved for dismissal of the complaint, arguing that section 114 had rendered moot all issues raised in appellants’ complaint that remained after this court’s 1984 decision. Appellees also moved for a lifting of the preliminary injunction, arguing that the requirements of the 1972 stipulation, NEPA and its regulations had all been complied with. The district court agreed with appellees, and on May 26, 1987 dismissed the complaint and lifted the preliminary injunction. C.R. 507, 508.
In this third appeal, appellants challenge the district court’s decision to dismiss the complaint and lift the preliminary injunction. Specifically, they argue that the requirements of the 1972 stipulation, NEPA, and the applicable regulations have not been satisfied. They also contend that section 114 is an unconstitutional exercise of congressional power, violating the Spending Clause, the equal protection component of the Fifth Amendment’s Due Process Clause, and the principle of separation of powers. Appellants seek reversal of the district court’s decision and reimposition of the preliminary injunction.
II. STANDARD OF REVIEW
We review de novo the district court’s decision to grant a motion to dismiss for mootness. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 319 (1986). The district court’s decision to lift the preliminary injunction is reviewed for abuse of discretion. See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir.1985), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986).
III. DISCUSSION
A. NEPA and the Stipulated Injunction
Appellants argue that the district court erred in holding that appellees had complied with the terms of the stipulated injunction. According to appellants, the terms of the stipulation required that the court determine the adequacy of a Third Supplemental Environmental Impact Statement, which appellees were in the process of preparing, before construction of H-3 could proceed. Because appellants were not given the opportunity to litigate the adequacy of the Third SEIS, they argue, the injunction should be reinstated.
Appellants also contend that appellees' decision to prepare a Third SEIS lengthened the EIS process beyond the approval of the 1982 EIS and thus rendered premature the district court’s dismissal of the action. According to appellants, the district court could not dismiss the action pri- or to its approval of the Third SEIS.
1. The Stipulation
In 1972, the parties entered into a stipulation that provided, in relevant part:
It is agreed that Defendants shall not permit construction, further acquisition of right of way, or further letting of contracts on the Moanalua-Haiku Segment until the adequacy of the Final Environmental Impact Statement is determined by this Court.
C.R. 34, at 3.
In 1980, PHWA approved a final SEIS for the North Halawa Valley alignment of the H-3 project. Together with the 1972 Moanalua Valley EIS (“1972 EIS”) and the 1973 Supplemental EIS (“1973 Preface”), the 1980 SEIS constituted the EIS for the North Halawa Valley alignment of the project. Location and design approval for the H-3 project was given on February 5, 1981. On April 10, 1981, appellants filed a 142 page, 48 count, Amended and Supplemental Complaint for Declaratory and In-junctive Relief, challenging the appellees’ decision to proceed with the H-3 project.
In its decision of April 8, 1982, the district court held that the 1972 EIS and 1973 Preface complied with the requirements of NEPA and were properly approved. Stop H-3 Ass’n v. Lewis, 538 F.Supp. 149, 183 (D. Hawaii 1982), aff'd in part and rev’d in part, 740 F.2d 1442 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The district court further held that the 1980 SEIS was properly prepared and circulated and adequately discussed the project’s impact upon North Ha-lawa Valley. Id. The court held that the EIS as a whole “sufficiently addresses the project’s socio-economic impacts and relationship to the Oahu General Plan.” Id. The district court however ordered appel-lees to prepare and circulate another supplemental EIS to reflect “new and significant” information that had arisen since the draft 1980 SEIS was circulated and not discussed in the North Halawa Valley EIS. Id. at 183, 184. The court also set aside the Secretary’s section 4(f) determination concerning Ho’omaluhia Park on the ground that “the 4(f) statement does not adequately support the finding that all possible measures have been taken to minimize harm to the park.” Id. at 183. The court however affirmed the Secretary’s conclusion that no feasible and prudent alternatives exist to the use of the park. Id. Finally, holding that conditions had changed sufficiently since imposition of the injunctions to justify terminating those injunctions and ordering new relief, the district court vacated the then-extant injunctions against the H-3 project and set aside the Secretary’s grant of location and design approval for the project. Id.
Appellees accordingly prepared a second SEIS, which FHWA approved on September 28, 1982. The Secretary of Transportation thereupon granted new location and design approvals for the H-3 project on November 12, 1982. Appellants did not challenge the validity of these actions; they have never contended that appellees failed to comply with the district court’s 1982 order.
Appellants however appealed from the district court’s 1982 decision. In 1984, we affirmed the district court’s 1982 ruling in respect to the adequacy of the 1980 EIS under NEPA. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1465 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). We reversed, however, the district court’s conclusion that the Secretary had correctly determined, under section 4(f), that there were no feasible and prudent alternatives to the “constructive use” of Ho’omaluhia Park. Id. at 1450-58. We therefore ordered the district court to reinstate the injunctions against further construction of H-3 pending the Secretary’s compliance with section 4(f) as the statute applied to Ho’omaluhia Park. Id. at 1465.
Following this court’s 1984 decision, therefore, the only obstacles remaining to construction of H-3 were the requirements of section 4(f) and the district court’s approval of the Final EIS. On October 18, 1986, President Reagan signed Public Law No. 99-500, 100 Stat. 1783. Section 114, 100 Stat. 1783-349, provides:
(a) The Secretary of Transportation shall approve the construction of Interstate Highway H-3 between the Halawa interchange to, and including the Halek-ou Interchange (a distance of approximately 10.7 miles), and such construction shall proceed to completion notwithstanding section 138 of title 23 and section 303 of title 49, United States Code [i.e., section 4(f)].
(b) Notwithstanding section 102 of this joint resolution the provisions of subsection (a) shall constitute permanent law.
The clear intent and effect of this statute is to exempt the H-3 project from the requirements of section 4(f). As we explain below, section 114 does not suffer from any of the constitutional infirmities advanced by appellants. Therefore, enactment of section 114 left only one impediment to construction of H-3: approval of a Final EIS for the project.
2. The Third SEIS
After enactment of section 114, appellees carried out a formal reevaluation of the H-3 project pursuant to 23 C.F.R. 771.-129(c)(2). This regulation requires such reevaluations when major steps to advance a project have not occurred within three years after the approval of the final EIS. Based on this reevaluation, defendants began to prepare a Third SEIS, to consider the impact of the highway on archaeological resources and banana farmers in the vicinity of the proposed Kaneohe Interchange (the Luluku area). A draft Third SEIS was made available to the public on January 29, 1987, and official notice of its availability was published in the Federal Register on February 6,1987. 52 Fed.Reg. 3856 (1987).
On January 16, 1987, based on the re-‘ evaluation, the Acting Division Administrator of FHWA approved the H-3 project, authorizing detailed design and construe- ■ tion work. At the same time, however, the' Acting Division Administrator suspended his approval insofar as it would have authorized design and other project-related work in the vicinity of the proposed Kaneohe Interchange, pending completion of the Third SEIS.
On February 11, 1987, appellees filed a joint motion to dismiss thé action, on the grounds that the unchallenged issuance and FHWA approval of the 1982 SEIS satisfied the requirements of both NEPA and the district court’s 1982 decision and order, and that passage of section 114 had rendered moot any issues remaining in the litigation. C.R. 494. In their opposition to the motion, appellants argued that dismissal was unwarranted because the stipulation required that the adequacy of the Third SEIS be litigated prior to dismissal of the action. C.R. 495.
The district court, in its Decision and Order of May 8, 1987, granted appellees’ motion to dismiss, and terminated the injunctions in force. C.R. 507. The court held that the adequacy of the Final EIS had been determined by the court and that the issues in the lawsuit had all been resolved. Id. at 12. The court further held that “the formal reevaluation and subsequent preparation of the Third SEIS do not change the status of the Final EIS approved in 1982.”' Id. The district court concluded that because appellees had complied with NEPA and the terms of the stipulation, and because the enactment of section 114 had rendered moot any issues based on section 4(f), there was no further need to enjoin construction of H-3.
We agree with the district court’s reasoning. As discussed above, the district court in 1982 had determined that the North Ha-lawa Valley EIS was adequate except for its failure to discuss certain “new and significant” information which had arisen following circulation of the draft 1980 EIS. Stop H-3 Ass’n v. Lewis, 538 F.Supp. at 183-84. This court affirmed that determination in 1984. Stop H-3 Ass’n v. Dole, 740 F.2d at 1465. Appellees accordingly prepared a Second SEIS discussing the new information; FHWA approved the Second SEIS in September 1982. Appellants have never challenged the adequacy of the SEIS ordered by the district court in 1982. The district court, therefore, could correctly find that the 1982 EIS constituted a “final” and “adequate” EIS for the H-3 project, notwithstanding appellees’ decision to prepare a Third SEIS.
Moreover, there is no authority for the proposition that the decision to prepare a Supplemental EIS after a Final EIS has been approved requires that work outside the area affected by the Supplemental EIS be halted. Appellants cite in their brief a number of cases which, they argue, constitute such authority. See Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 531 F.2d 637 (2d Cir.1976); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th Cir.1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927 (2d Cir.1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), on remand, 531 F.2d 637 (2d Cir.1976); Sierra Club v. Stamm, 507 F.2d 788, 793 (10th Cir.1974); Citizens for Balanced Environment & Transportation, Inc. v. Volpe, 503 F.2d 601 (2d Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); Sierra Club v. Callaway, 499 F.2d 982, 990 (5th Cir.1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir.1973); Jones v. Lynn, 477 F.2d 885 (1st Cir.1973); Named Individual Members of San Antonio Conservation Society v. Texas High way Department, 446 F.2d 1013 (5th Cir.1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972); Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 115 (D.N.H.1975); Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974); Movement Against Destruction v. Volpe, 361 F.Supp. 1360, 1384 (D.Md.1973), aff'd per curiam, 500 F.2d 29 (4th Cir.1974); James River v. Richmond Metropolitan Authority, 359 F.Supp. 611, 635 (E.D.Va.1973), aff'd, 481 F.2d 1280 (4th Cir.1973); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 740 (D.Conn.1972). However, none of these cases present a situation where, as here, a Final EIS has already been prepared and approved. Instead, the cases cited by appellants all concern the appropriate scope of an initial EIS; the cases stand only for the proposition that a single project cannot be artificially subdivided into a number of separate projects for which separate EIS’s may be prepared. In this case, appellees have not attempted to segment the H-3 project into separate projects. Rather, appellees acknowledge that the H-3 project as a whole required approval of a Pinal EIS before construction could commence. They argue, correctly, that the 1982 EIS fulfilled this function.
We hold that the district court correctly determined that FHWA's decision to prepare a Third Supplemental EIS did not deprive the 1982 EIS of its status as a Final EIS. Because the district court’s approval of the 1982 EIS satisfied the requirement of the 1972 stipulation, and because NEPA permits work on those parts of a project unrelated to a Supplemental EIS to go forward when the project is already the subject of an adequate Final EIS, we affirm the district court’s decision that neither NEPA nor the stipulation barred dissolution of the injunction and dismissal of the action.
B. Spending Clause
Appellants argue that by exempting the H-3 project from the requirements of section 4(f), section 114 exceeds Congress' power under the Spending Clause of the Constitution. Section 114 violates the Constitution, according to appellants, because the Spending Clause permits expenditures only for “national” purposes, yet the H-3 project, appellants argue, serves only “local” purposes.
As support for their contention that the H-3 project is of “local” and not “national” significance, appellants point to the fact that the proposed highway is contained entirely within the state of Hawaii, and could only carry vehicles from one point in Hawaii to another. In addition, they note that a report issued in 1982 by the Congressional Budget Office (CBO) describes the highway as having “local” rather than “national” importance. Congressional Budget Office, The Interstate Highway System: Issues and Options, Table C-l (June 1982).
In response, appellees argue, first, that section 114 does not represent an exercise of Congress’ power under the Spending Clause because section 114 does not itself authorize the expenditure of funds. Thus, appellees imply, section 114.cannot violate the requirements of the Spending Clause. Second, appellees contend that even if section 114 were construed as an exercise of the spending power, the provision is a valid exercise of that power because the H-3 project is of “national” not “local” importance.
We find it unnecessary to decide whether section 114 is a spending measure, because it is clear that the H-3 project, whose construction section 114 mandates, is of national and not merely local importance and was intended to serve the general welfare. As the district court observed, H-3 is a part, of an interstate highway system which serves important defense functions. Decision and Order, C.R. 507 at 5. Therefore, even if we were to accept appellants’ characterization of section 114 as a spending measure, we would conclude that the provision falls comfortably within the scope of the spending power.
Congress has declared that prompt completion of the entire Interstate System is a matter of national importance. In the Federal-Aid Highway Act, Congress stated:
It is hereby declared to be in the national interest to accelerate the construction of the Federal-aid highway systems, including the National System of Interstate and Defense Highways, since many of such highways, or portions thereof, are in fact inadequate to meet the needs of local and interstate commerce, for the national and civil defense.
It is hereby declared that the prompt and early completion of the National System of Interstate and Defense Highways, so named because of its primary importance to the national defense and hereafter referred to as the “Interstate System”, is essential to the national interest and is one of the most important objectives of this Act.
23 U.S.C. § 101(b)) (1988). Congress’ explicit policy articulation demonstrates that completion of the entire interstate system, including construction of component highways either between or within individual states, is a matter of national importance.
As the district court correctly stated, the mere fact that H-3 is contained entirely within Hawaii does not negate the fact that it is part of a national system of highways. Decision and Order, C.R. 507 at 5. Nor does the CBO’s denomination of H-3 as a project of “local” importance supercede Congress’ own statement, in section 101(b), that the Interstate System of which H-3 is a part is of national importance.
Finally, we believe that appellants’ Spending Clause objection to section 114 is answered by the Supreme Court’s directive in Buckley v. Valeo:
Appellants’ “general welfare” contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause.... It is for Congress to decide which expenditures will promote the general welfare.
424 U.S. 1, 90, 96 S.Ct. 612, 668-69, 46 L.Ed.2d 659 (1976) (emphasis added). See also South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987) (“In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.”). Because Congress’ statement in section 101(b) of the Federal-Aid Highways Act makes it clear that Congress considered completion of the Interstate System a matter of national importance, and because section 114 was enacted to expedite the System’s completion, we must defer to Congress’ determination that any spending to implement section 114 will promote the general welfare.
C. Equal Protection
Appellants ask this court to hold that section 114 violates the equal protection component of the Fifth Amendment. They argue, first, that legislation which is alleged to harm the environment should be subjected to heightened judicial scrutiny because the right to a healthy environment is an “important” individual right and because Congress violated constitutional principles of federalism in enacting a provision which, according to appellants, invidiously discriminates against citizens of Hawaii. According to appellants, we must strike down section 114 under heightened scrutiny because the statute is not substantially related to achievement of an important governmental purpose. Second, appellants contend that section 114 is constitutionally defective even when reviewed for rationality using minimum scrutiny, because it creates an arbitrary classification by denying residents of Hawaii the environmental protections provided by the 4(f) statutes.
The district court rejected appellants’ arguments. The court observed, first, that no court has found that there is a fundamental right to a healthy environment. Decision and Order, C.R. 507 at 7. Therefore, heightened judicial scrutiny of section 114 was inappropriate. Next, the district court held that Congress had a rational basis for passage of section 114. The court stated:
In addition to the rising costs of the [H-3] project over the past 14 years, Congress has the power to overturn judicial decisions which they feel are based on an interpretation of a statute [i.e., section 4(f) ] inconsistent with the intent of Congress when the law was passed. That is what Congress has done here.
Id. at 7-8.
Appellants contend that the district court erred in applying the “rational basis” test to resolve their equal protection claim. The court, according to appellants, should have employed an “intermediate” level of scrutiny for two reasons. First, appellants argue that intermediate scrutiny of a statute affecting the environment is appropriate because such statutes impinge on the “important” individual right to a healthy environment. Section 114, appellants maintain, denies residents of Hawaii this right, and thereby violates their right to equal protection of the laws. Second, appellants contend that intermediate scrutiny of section 114 is required because the legislation rests on a distinction between citizens and non-citizens of Hawaii, a distinction which violates the constitutional principle of federalism.
Intermediate scrutiny is only employed when “concerns sufficiently absolute and enduring can be clearly ascertained from the Constitution and [Supreme Court] cases_” Plyler v. Doe, 457 U.S. at 218 n. 16, 102 S.Ct. at 2895 n. 16. Appellants argue that their interest in having a “clean and healthful environment” rises to this level. Appellants concede that no court has yet found that preservation of a healthy environment constitutes a concern of constitutional magnitude deserving heightened judicial scrutiny in the context of equal protection challenges to legislation alleged to degrade the environment. They nonetheless argue, with some force, that the right to a healthy environment is one this court should recognize because of its great importance to the well-being of all persons.
We agree that it is difficult to conceive of a more absolute and enduring concern than the preservation and, increasingly, the restoration of a decent and livable environment. Human life, itself a fundamental right, will vanish if we continue our heedless exploitation of this planet’s natural resources. The centrality of the environment to all of our undertakings gives individuals a vital stake in maintaining its integrity.
However, we need not decide here whether the importance of a healthful environment gives rise to a right of constitutional magnitude. Even assuming, arguendo, that enjoyment of a healthful environment is an important right for purposes of equal protection analysis, section 114 satisfies the requirements for validation of legislation under the intermediate level of scrutiny appellants urge this court to apply-
First of all, we have found no authority forbidding Congress in all instances from carving out a local exception to a national policy. To the contrary, many decisions approve such action. See, e.g., Friends of the Earth v. Weinberger, 562 F.Supp. 265, 270 (D.D.C.1983), appeal dismissed without opinion, 725 F.2d 125 (D.C.Cir.1984) (“Jackson amendment” exempting Executive branch report on how MX missiles were to be based from NEPA requirements); Sequoyah v. TVA, 480 F.Supp. 608 (E.D.Tenn.1979), aff'd, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980) (provision of Energy and Water Development Act authorizing Tennessee Valley Authority to impound Tellico River notwithstanding requirements of Endangered Species Act or “any other law”). In Sequoyah v. TVA, the court stated that “[tjhere is no question... that Congress has the power to make exceptions to rights it or state legislatures have created by statute, as long as such exceptions are not invidiously discriminatory.” 480 F.Supp. at 610-11. Finding nothing invidiously discriminatory in Congress’ decision to exempt the Tellico Dam project from otherwise applicable legal requirements, the Sequoyah court rejected plaintiffs’ equal protection argument. Id. at 612.
Appellants argue that this case, unlike Sequoyah, presents an example of “invidiously discriminatory” legislation. They contend that in enacting section 114 Congress singled out Hawaii and its citizens for unique and onerous treatment. According to appellants, the “legislative classification” embodied in section 114 is between the entire population of Hawaii, whose interaction with and enjoyment of the environment will be diminished by H-3, and all other United States citizens. This alleged imposition on citizens of Hawaii of a disadvantage not shared by citizens of the other states, appellants maintain, invidiously discriminates against Hawaiians based on their state citizenship in violation of the constitutional principle of federalism. Federalism principles, as appellants point out, forbid the federal government from treating any state as the inferior of any other state, regardless of its order of entry into the Union. Appellants contend that section 114 has precisely this effect, because it allegedly subjects Hawaii and its citizens to a burden which no other state must bear. Appellants conclude that this court should strike down section 114 because the statute imposes hardships on a group whose membership is determined by reference to a classification, state citizenship, which undermines federalism’s precept that all states in the federal Union stand on an equal footing.
We do not accept appellants’ analysis. First, section 114 does not, as appellants believe, rest on a legislative distinction between Hawaii and the other 49 states. Section 114 by its terms refers only to the H-3 project. The statute does not exempt all federal highway construction projects in Hawaii from the requirements of section 4(f); rather, it exempts one project located in Hawaii from the 4(f) statutes. Even when we look beyond its terms to its effect, section 114 does not affect the state of Hawaii as a whole, to the exclusion of the rest of the nation. Instead, the effects of section 114 will be felt by any United States citizen whose use and enjoyment of Hawaii’s environment is affected by H-3, regardless of that person’s state of residence. Thus in depicting citizens of Hawaii as a disadvantaged “class” for purposes of equal protection analysis, appellants include people who will not be affected by construction of H-3, and overlook others who will. In short, it cannot be said that section 114 rests on a state-based classification simply because it refers to a project located in Hawaii.
Even if we were to accept appellants’ contention that section 114 creates a legislative classification which subjects citizens of Hawaii to treatment different from that accorded to citizens of the other states, we could not conclude that the statute invidiously discriminates against citizens of Hawaii in violation of the principles of federalism. Contrary to appellants’ assertion, it is simply not true that Congress may not create exemptions from generally applicable statutes in order to authorize state-specific projects. See, e.g., Trans-Alaska Pipeline Authorization Act, Pub.L. 93-153, 87 Stat. 576 (amending the Mineral Lands Leasing Act, 30 U.S.C. § 185 [1970 ed.], to overcome that Act’s width limitation for pipelines and thereby permit construction of the Trans-Alaska Pipeline). See also Izaak Walton League of America v. Marsh, 655 F.2d 346, 367 (D.C.Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630 (1981).
We note, also, that appellants have not alleged that Congress was motivated by discriminatory animus against Hawaii or its citizens when it enacted section 114. Nor is there any evidence in the record that Congress intended to harm the people of Hawaii by exempting the H-3 project from the 4(f) statutes. To the contrary, there is evidence that Congress was partly motivated by its belief that the highway would benefit Hawaii. See H.R.Rep. No. 99-1005, 99th Cong., 2d Sess. 784 (1986) (“The conferees also take note of the fact that H-3 has been the subject of litigation for more than 14 years. During that time,... the people of Hawaii have been deprived of a much needed highway.”). The Supreme Court has stated, in the context of claims of gender discrimination, that
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_caseoriginstate
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20
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO.
No. 522.
Argued April 20, 1949.
Decided June 20, 1949.
Cornelius Roach argued the cause for petitioner. With him on the brief was Daniel L. Brenner.
Douglas Hudson argued the cause and filed a brief for respondent.
Opinion of the Court by
Mr. Justice Douglas,
announced by
Mr. Justice Reed.
This case, involving a highway accident which occurred on October 1, 1943, came to the District Court for Kansas by reason of diversity of citizenship. Petitioner instituted it there on September 4, 1945, by filing the complaint with the court — the procedure specified by the Federal Rules of Civil Procedure. As prescribed by those Rules, a summons was issued. Service' was had on December 28, 1945. Kansas has a two-year statute of limitations applicable to such tort claims. Respondent pleaded it and moved for summary judgment. Petitioner claimed that the filing of the complaint tolled the statute. Respondent argued that by reason of a Kansas statute the statute of limitations was not tolled until service of the summons.
The District Court struck the defense and denied respondent’s motion. A trial was had and a verdict rendered for petitioner. The Court of Appeals reversed. 170 F. 2d 987. It ruled, after a review of Kansas authorities, that the requirement of service of summons within the statutory period was an integral part of that state’s statute of limitations. It accordingly held that Guaranty Trust Co. v. York, 326 U. S. 99, governed and that respondent’s motion for summary judgment- should have been sustained. The case is here on a petition for certiorari which we granted because of the importance of the question presented. 336 U. S. 917.
Erie R. Co. v. Tompkins, 304 U. S. 64, was premised on the theory that in diversity cases the rights enjoyed under local law should not vary because enforcement of those rights was sought in the federal court rather than in the state court. If recovery could not be had in the state court, it should be denied in the federal court. Otherwise, those authorized to invoke the diversity jurisdiction would gain advantages over those confined to state courts. Guaranty Trust Co. v. York applied that principle to statutes of limitations on the theory that, where one is barred from recovery in the state court, he should likewise be barred in the federal court.
It is conceded that- if the present case were in a Kansas court it would be barred. The theory of Guaranty Trust Co. v. York would therefore seem to bar it in the federal court, as the Court of. Appeals held. The force of that reasoning is sought to be avoided by the argument that the Federal Rules of Civil Procedure determine the manner in which an action is commenced in the federal courts — a matter of procedure which the principle of Erie R. Co. v. Tompkins does not control. It is accordingly-argued that since the suit was properly commenced in the federal court before the Kansas statute of limitations ran, it tolled the statute.
That, was the reasoning and result in Bomar v. Keyes, 162 F. 2d 136, 141. But that .case was a suit to enforce rights under a federal statute. Here, as in that case, there can be no. doubt that the suit was properly commenced in the federal court. But in the present case we look to local law to find the cause of action on which suit is brought. Since that cause of action is created by local law, the measure of it is to be found only in local law/ It carries the same burden and is subject to the same defenses in the federal court as in the state' court. See Cities Service Co. v. Dunlap, 308 U. S. 208; Palmer v. Hoffman, 318 U. S. 109, 117. It accrues and comes to an end. when local law so declares. West v. American Tel. & T. Co., 311 U. S. 223; Guaranty Trust Co. v. York, supra. Where local law qualifies or abridges it,, the federal court must follow; suit. Otherwise there is a different measure of the cause of action in one court than in the other, and the principle of Erie R. Co. v. Tompkins is transgressed.
We can draw no distinction in this case because local law brought the cause of action tb an end after, rather than before, suit was started in the federal court.. In both cases local law created the right which the federal court was asked to enforce. In both cases local law undertook to determine the life of the cause of action. We cannot give -it longer life in the federal court than it would have had in the state, court without adding something to the cause of action. We may not do that consistently with Erie R. Co. v. Tompkins.
It is argued that the Kansas statute in question is not an integral part of the Kansas statute of limitations. But the Court of Appeals on a careful canvass of Kansas law in an opinion written by Judge Huxman, a distinguished member of the Kansas bar, has held to the contrary. We ordinarily accept the determination of local law by the Court of Appeals (see Huddleston v. Dwyer, 322 U. S. 232, 237), and we will not disturb it here.
Affirmed.
Mr. Justice Rutledge dissents. See his dissenting opinion in Nos. 442 and 512, Cohen v. Beneficial Industrial Loan Corp., post, p. 557.
Rule 3 provides, “A civil action is commenced-by filing a complaint with the court.”
Rule 4 (a) provides:
“Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it. CJpon request of the plaintiff separate or additional summons shall issue against any defendants.!’
An earlier summons issued on September 7, 1945, ana thereafter served had been quashed.
Kan. Gen. Stats. 1935, § 60-306.
Id., § 60-308 provides,
“An action- shall be deemed commenced within the" meaning of this article, as to each defendant, at the date of the summons which is served on him, or oh a codefendant who is a joint contractor, Or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt.to commence an action shall be deemed equivalent to the, commencement thereof within the meaning of this article when the party faithfully, properly and diligently ■ endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.”
Civil Rights Act, 8 U. S. C. § 43.
Note 4, supra.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_r_bus
|
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 "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.
HYBUD EQUIPMENT CORP., et al., Plaintiffs-Appellants, v. CITY OF AKRON, OHIO, et al., Defendants-Appellees.
No. 83-3306.
United States Court of Appeals, Sixth Circuit.
Argued April 16, 1984.
Decided Aug. 24, 1984.
Merritt, Circuit Judge, filed concurring opinion.
William C. Brashares, argued, John H. Korns, (LC), Charles A. Samuels, Cladouhos & Brashares, Washington, D.C., Joseph Abdenour, Akron, Ohio, Francis X. Beytagh, Toledo, Ohio, John L. Wolfe, Akron, Ohio, for plaintiffs-appellants.
Edward J. Riegler (LC), W.F. Spicer, James L. Bickett, Akron, Ohio, Eben Crawford, argued, Cleveland, Ohio, John E. Holcomb, Akron, Ohio, William E. Schultz, Steven J. Schwartz, Timothy M. Hartman, Asst. Pros. Attys., Akron, Ohio, William Baughman, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees.
John W. Pestle, Randall W. Kraker, Jeffrey S. Rueble, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, Mich., for amicus curiae Public Corp. Law Section of the State Bar of Mich., The Mich. Tps. Assoc. and Mich. Cities of Ann Arbor, Battle Creek, Dearborn, Detroit, Flint, Grand Haven, Grand Rapids, Holland, Kalamazoo, Lansing, Livonia, Pontiac, Southfield, Traverse City and Troy.
Before MERRITT and MARTIN, Circuit Judges; BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
This case, which now makes its third appearance before this court, is one of the increasingly frequent challenges under the federal antitrust laws to the actions of state and municipal bodies. These actions raise fundamental questions about the balance of federal and state power and pose the inherent conflict between the national policy of free competition and the anticompetitive consequences of state regulation. This rapidly evolving area of the law portends far-reaching changes in the role of the federal courts in reviewing the exercise of regulatory authority by the states and, ultimately, in the relationship between states and their political subdivisions.
The plaintiffs in the instant case allege that the City of Akron, as part of a comprehensive program to dispose of solid waste and create steam energy, has monopolized the business of solid waste processing in violation of the Sherman Antitrust Act. 15 U.S.C. § 1 et seq. The defendants, including the City and a state agency, contend that their actions are protected by the “state action exemption” to the antitrust law developed by Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) and its progeny. The plaintiffs appeal from summary judgment holding that the defendants’ actions were within the state action exemption and therefore immune to antitrust attack.
I.
A. History of the Recycle Energy System and the Ordinance Under Challenge.
The facts in this case are set forth in detail in the original district court opinion, Glenwillow Landfill, Inc. v. City of Akron, 485 F.Supp. 671 (N.D.Ohio 1979). Those facts relevant to the issues before us are summarized below.
The plaintiffs in this case challenge an ordinance adopted as part of a plan to solve two pressing problems confronting the City of Akron. In the late 1960’s, Akron had exhausted all but one sanitary landfill for solid waste disposal. A proposal to open a new site encountered immediate legal challenges. As the City struggled to find alternatives for waste disposal, Ohio Edison petitioned the Public Utilities Commission to permit the company to abandon its steam heating system and halt the supply of steam for Akron’s downtown business district.
In an effort to find a single solution to its difficulties, the City began to consider constructing a “Recycle Energy System” (“RES”) to convert solid waste into steam. After several studies and a public hearing, the City Council, in April 1973, authorized the City administration to retain a firm to design an RES project. By December 1974, final plans and specifications were completed and construction contracts were let out for bid. Financing, however, proved to be a substantial barrier. The City intended to issue revenue bonds to finance the project, but in mid-1975 the underwriters for the bond issue informed the City that the bonds would not be marketable.
The City turned to the Ohio Water Development Agency (“OWDA”) for assistance, and in September 1975, OWDA agreed to finance the project by issuing revenue bonds. When OWDA found that the bond issue could not be secured by the City’s general fund, the proposed financing package was restructured with new underwriters. The new underwriters renegotiated steam supply contracts for the project and required the creation of a special contingency fund by the City and county governments to cover construction cost overruns. The underwriters also determined that the RES must be assured a steady supply of waste in order to market the bonds. Following this evaluation, the City and OWDA decided that it would be necessary to require, by ordinance, that all solid waste collected within the City limits be transported to the RES facility.
In 1976, the City and OWDA entered into a Cooperative Agreement to finance the RES project. Section 5.5 of the Agreement provides that the City (“LGA”) covenants with the OWDA for the benefit of the bond holders that:
I. For the term of this Agreement, the LGA shall require that all collectors and haulers of Solid Waste within the LGA be licensed by the LGA and all such licenses shall provide that all collectors or haulers of Solid Waste shall dispose of all Solid Waste generated within the corporate limits of the LGA which is acceptable for disposal by the Project to be delivered to the Project for disposal through the Project and require that such haulers and collectors and the LGA pay or cause to be paid the fees and charges imposed by the LGA for the disposal of Solid Wastes at the Project. The LGA will take all available action, administrative, judicial and legislative, to cause all Solid Waste genérated within the corporate limits of the LGA and which is acceptable for disposal by the Project, to be delivered to the Project for disposal through the Project.
The Agreement further provides that the City would prohibit the establishment of alternative waste disposal sites. In December 1976, the OWDA issued an Official Statement announcing the offering of $46,-000,000 of special obligation bonds to finance the project. The Statement contained a copy of the Cooperative Agreement.
To carry out the terms of the Agreement, the Akron City Council adopted Ordinanee No. 841-76 in October, 1976. The ordinance requires all rubbish collected within the corporate limits of the City to be deposited at the RES plant. The ordinance also authorizes the Director of Public Service to establish a service charge (“tipping fee”) for disposal of solid waste at the RES facility. Persons who violate the ordinance may lose their licenses and face criminal prosecution.
Before the adoption of the ordinance, plaintiff Hybud Equipment Corp. was a licensed hauler of waste in the Akron area. Under agreements with various commercial and industrial firms, Hybud collected solid waste in return for a fee. An affiliated company, plaintiff Budoff Iron and Metal Corp., operated a transfer station that separated out recyclables — primarily cardboard and metals — to be sold. Nonrecyclable solid waste was transported to landfills where a tipping fee was charged to the haulers for each ton of waste disposed.
The ordinance affects the plaintiffs’ business in several ways. All waste collected within the City limits must be transported to the RES plant and haulers must pay a uniform tipping fee to the RES plant. This exclusive right eliminates any possible competition among disposal sites within the City and prohibits haulers from seeking lower tipping fees at sites outside the City. Furthermore, the separation and sale of recyclable materials by collectors is curtailed by the ordinance. All solid waste— including waste containing recyclables— must be delivered to the RES facility. Recyclable materials may be burned as fuel or separated by the plant operator and sold to generate additional income. As part of an incentive agreement, the operator of the plant, Teledyne National, is permitted to retain one-half of all revenues recovered from the sale of recyclable materials. The remainder is to be used to offset operating expenses.
B. Prior Proceedings
The plaintiffs brought suit in federal court alleging that the ordinance and agreement deprived them of due process, constituted a restraint of commerce, and violated the Sherman Antitrust Act. In Glenwillow Landfill, Inc. v. City of Akron, 485 F.Supp. 671 (N.D.Ohio 1979), the district court awarded summary judgment to the defendants on all issues.
The district court ruled that the defendants’ activities were protected from antitrust liability under the state action exemption of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The district court rested its decision on two alternative grounds. First, the court found that OWDA was acting for the state in advancing legitimate state interests. The restrictions in the Cooperative Agreement, the court found, were within OWDA’s authority to finance solid waste facilities. This exercise of this state power, the court held, was beyond the reach of the antitrust laws. 485 F.Supp. at 676-77. Second, the court found that the state of Ohio had authorized the City of Akron through its home-rule powers to regulate waste collection. “[T]he Ohio Constitution declares that cities act as agents of the state when they exercise governmental powers within their city limits.” 485 F.Supp. at 677. The Ohio courts, moreover, had held that such power could lawfully be exerted through a monopoly. Therefore, the district court concluded, the state action exemption protected the City’s exercise of state power.
The district court’s decision was affirmed on appeal. Hybud Equipment Corp. v. City of Akron, 654 F.2d 1187 (6th Cir. 1981). The collection of garbage and the operation of incineration plants, this court noted, were within the traditional activities of local governments. The home-rule provisions of the Ohio Constitution as interpreted by the State Supreme Court authorized municipal monopolies to carry out these functions. Moreover, an agency of the state, the OWDA, would oversee the exercise of this authority. Thus, this court held that the ordinance and agreement were immune from antitrust liability as actions of the state.
The Supreme Court granted the plaintiffs’ petition for writ of certiorari and vacated this court’s judgment. The case was remanded for consideration in light of the Court’s decision in Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). Hybud Equipment Corp. v. City of Akron, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982). This court, in turn, remanded the case to the district court with instructions to reconsider only the plaintiffs’ claims under the Sherman Antitrust Act. 701 F.2d 178.
On remand, the district court again held that the defendants’ activities were protected by the state action exemption. Eschewing this court’s reliance on Akron’s home-rule powers, the district court found “sufficient grounds for antitrust exemption within the Ohio statutes governing the OWDA.” The court found that these statutes demonstrated that the state legislature contemplated the anticompetitive consequences of OWDA’s exercise of its bonding authority. This expression of state policy coupled with OWDA’s supervision of the RES project, the district court held, shielded the City from liability under the federal antitrust laws and satisfied the requirements of City of Boulder. This determination is the sole issue now before us.
II.
A. The Development of the State Action Exemption.
The Supreme Court’s decision in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the original declaration of the state action exemption, continues to exert a strong influence on the recent development of that doctrine. In Parker, the Court considered whether a state program restricting agricultural production could be attacked under the Sherman Act. Under California’s Agricultural Prorate Act, the State Agricultural Prorate Advisory Commission authorized the creation of local cooperatives to establish marketing policies for raisin production. The Commission, appointed by the Governor pursuant to the statute, had to approve the cooperative’s plans. To become effective, these plans then had to be ratified by a specified number of the producers in each area.
In Parker, the Court held that “nothing in the language of the Sherman Act or in its history... suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.” 317 U.S. at 350-51, 63 S.Ct. at 313. Absent a clear indication from Congress, the States are entitled to immunity as an aspect of the federal system. “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Id. at 351, 63 S.Ct. at 313. The Court held that the prorate program was protected by this immunity. “It is the state which has created the machinery for establishing the prorate program.” The participation of private producers and the referendum system did not detract from the character of the program. “The state itself exercises its legislative authority in making the regulation and in prescribing the conditions of its application. The required vote on the referendum is one of these conditions.” Id. at 352, 63 S.Ct. at 314.
The decisions following Parker have been primarily concerned with determining the nature and extent of state involvement necessary to establish the exemption. In Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), the Court considered a challenge to minimum fee schedules established by a county bar association and enforced by the state bar. Although the state bar was a “state agency” for purposes of investigating and reporting violations of disciplinary rules, the final statutory authority for regulating the practice of law was vested in the state supreme court. The state supreme court, however, had not directed the establishment of such schedules. The Court rejected the argument that the schedules were protected because they “complemented the objectives of the ethical codes.” To claim the protection of the exemption, “[i]t is not enough that... anticompetitive conduct is ‘prompted’ by state action; rather the anti-competitive activities must be compelled by direction of the State acting as sovereign.” 421 U.S. at 791, 95 S.Ct. at 2015. Because the state, acting through the legislature or through the state supreme court, had not directed or authorized the anticompetitive action, the Court held that the schedules were not exempt from the Sherman Act as state action.
The implication of Goldfarb is that a rule adopted by a sovereign authority of the state would be entitled to antitrust immunity. The Court followed this reasoning in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and granted immunity to a rule adopted by the state supreme court banning the advertising of legal services. The measures, the Court held, “reflect a clear articulation of the State’s policy with regard to professional behavior.” The Court also found it significant that “the state policy is so clearly and affirmatively expressed and that the state’s supervision is so active.” 433 U.S. at 362, 97 S.Ct. at 2698. The Court in Bates stressed the difference between the facts of that case and the situation presented in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). In Cantor a state public utility commission approved a utility’s practice of distributing light bulbs for no charge and passing the costs to consumers through their utility bills. The Court held that the commission’s acquiesence in the program was insufficient to immunize the practice as state action. The Court found that the challenged program bore a remote relationship to the regulatory aims of the state, and, with respect to light bulb sales, there was no official state policy to displace competition.
In Parker, the anticompetitive conduct under attack was directed by the state legislature and supervised by state officers. In Bates, the rules in question were adopted by the state supreme court acting in its capacity as a legislative body with ultimate authority over the legal profession. In such cases, the challenged restraints are easily ascribed to the state as sovereign. Where the activity, however, “is not directly that of the legislature or supreme court, but is carried out by others pursuant to state authorization,” the application of the exemption requires a more searching analysis. Hoover v. Ronwin, — U.S. —, 104 S.Ct. 1989, 1995, 80 L.Ed.2d 590 (1984). In these eases, the Court has required a showing that the challenged restraint is “one clearly articulated and affirmatively expressed as state policy.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980). See also, City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 1135, 55 L.Ed.2d 364 (1978); Community Communications Co., Inc. v. City of Boulder, 455 U.S. 40, 54, 102 S.Ct. 835, 842, 70 L.Ed.2d 810 (1982). The Court has also considered the degree to which the state “actively supervises” the policy. Midcal Aluminum, 445 U.S. at 105, 100 S.Ct. at 943; New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 110, 99 S.Ct. 403, 412, 58 L.Ed.2d 361 (1978). Thus, a state law authorizing wine suppliers to establish and enforce resale prices is not exempt if the state fails to exercise active supervision over the arrangements. Midcal Aluminum.
B. Municipal Immunity.
In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Court held that Congress did not intend to exempt cities from the antitrust laws merely because of their status as political subdivisions of the states. At issue was a challenge to the practices of utilities owned and operated by two cities. Justice Brennan, writing for a plurality, held that only municipal actions “pursuant to state policy to displace competition with regulation or monopoly public service” would be entitled to the exemption. 435 U.S. at 413, 98 S.Ct. at 1137. The Chief Justice, in a separate opinion, concurred with the plurality’s holding that the activities under challenge were exempt only if they were the result of a state policy to displace competition. The Chief Justice reasoned, however, that such authorization was required because the cities were engaging in proprietary activities, implying that nonproprietary activities would be immune from antitrust attack without an inquiry into state policy. 435 U.S. at 423-26, 98 S.Ct. at 1142-43.
The split decision in Lafayette produced no little confusion among lower courts. Some of the questions raised in Lafayette were settled by the Court’s decision in Community Communications Co., Inc. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). In that case, the plaintiff challenged a three-month emergency ordinance imposing a moratorium on the extension of cable television services in Boulder. The City claimed that the moratorium was a proper exercise of its home-rule powers. Justice Brennan, writing for a majority, affirmed Lafayette’s holding that cities are not automatically immune from antitrust liability. The Court, moreover, rejected the City’s argument that its actions were protected as an exercise of state sovereign power delegated to the City. For purposes of the Parker exemption, sovereignty is exclusively reserved to the state and cannot be transferred to a political subdivision. Municipalities, the Court held, “could partake of the Parker exemption only to the extent that they acted pursuant to a clearly articulated and affirmatively expressed state policy.” Id. at 54, 102 S.Ct. at 842.
The City of Boulder maintained, in the alternative, that its actions were immune because the grant of home-rule powers by the state constitution met the requirement of “clear articulation and affirmative expression.” This grant of authority, the City contended, demonstrated that the legislature “contemplated the kind of action” that was under attack. Again, the Court squarely rejected the City’s position. The Court characterized the state’s position as one of “mere neutrality.” “A State that allows its municipalities to do as they please can hardly be said to have ‘contemplated’ the specific anticompetitive actions for which municipal liability is sought.” Id. at 55, 102 S.Ct. at 843. Accepting a general grant of legislative authority as a mandate for specific anticompetitive measures, the Court held, “would eviscerate the concepts of ‘clear articulation and affirmative expression.’ ” Id. at 56, 102 S.Ct. at 843.
The Boulder decision clarified the basis of municipal immunity. Whether a city is entitled to the Parker exemption depends not upon the proprietary character of the city’s actions or whether the action is within the general powers delegated to the city by the state. Immunity would attach only if the measures were taken pursuant to a “clearly articulated and affirmatively expressed” state policy. Left unresolved, however, were related issues of critical importance. The Court reserved the question of whether a city’s actions must also satisfy the test of “active state supervision.” Further, although it is clear that home-rule powers alone are insufficient, the Court did not describe what degree of specific statutory authorization is necessary to invoke the exemption.
C. Immunity for State Agencies.
The plurality in Lafayette stressed that an exacting standard for municipalities was necessary to maintain economic order within a state and avoid a multitude of conflicts with national policy. “Serious economic dislocation” could result if each city were free to pursue its own parochial interests. 435 U.S. at 412-13, 98 S.Ct. at 1136. This emphasis on economic atomization within a state suggests that a different standard might apply to agencies with state-wide jurisdiction. Arguably, an agency with statewide powers, especially if it has authority to make policy, should not be required to show that its conduct was “pursuant to an affirmatively expressed and clearly articulated policy” to displace competition.
The Supreme Court discussed the standard applied to agencies in the recent case of Hoover v. Ronwin, — U.S. —, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984). There, the Court considered an antitrust attack on the grading of bar examinations by the Arizona Supreme Court’s Committee on Examinations and Admissions. In a four-to-three decision, the Court held that the actions of the Committee were, for purposes of the exemption, those of the “state acting as sovereign.” The Court’s decision turned on the special relationship between the committee and the state supreme court. The state supreme court “retained strict supervisory power over the committee and ultimate full authority over its actions.” Id,., 104 S.Ct. at 1997. Although the committee administered and graded the examinations, the “court itself approved the particular grading formula and retained the sole authority to determine who should be admitted to the practice of law in Arizona.” Id. at 1998. Where such provisions are absent, the challenged action cannot be attributed to the actions of the state as sovereign and the agency must satisfy the standard applied to municipalities. “[T]he anticompetitive conduct of a nonsovereign state representative... require[s] a showing that the conduct is pursuant to a ‘clearly articulated and affirmatively expressed state policy’ to replace competition with regulation.” Id. at 1995. The Court limited “sovereignty” to the state legislature and supreme court. The Court did not reach, however, the question of whether such sovereign authority may be attributed to the governor of a state. Id. at 1995 n. 17.
In the case at bar, the parties do not contend that OWDA is so closely related to a sovereign body that the actions of the agency may be attributed directly to the state as sovereign. Thus, OWDA’s actions are protected by the exemption only if taken pursuant to a “clearly articulated and affirmatively expressed state policy” to displace competition. With that standard in mind, we turn to consider the district court’s precise holding in the instant case.
III.
A. The District Court’s Decision.
On remand, the district court held that the statutes governing the OWDA demonstrated a “clearly articulated and affirmatively expressed state policy” to displace competition. The court found that “the cooperative agreement and ordinance in the present case were clearly ‘comprehended within the powers granted’ by the state legislature” to OWDA. The state legislature’s intent to displace competition was evinced by OWDA’s authority “to finance waste disposal facilities and to enter into agreements to safeguard the financial interests of the respective governmental agencies.” These provisions, the court held, provided a sufficient basis for. the exemption; therefore, the court did not consider whether Akron’s power under state law to regulate sanitation and waste disposal would satisfy the requirements for the exemption.
The OWDA was created to “provide for the comfort, health, safety, and general welfare of all employees and other inhabitants of the state... through efficient and proper methods” of solid waste disposal. Ohio Rev.Code § 6123.03. To this end, OWDA is authorized to finance solid waste facilities through revenue bonds to pay for the costs of such projects. The district court noted the following powers and duties of the OWDA:
For the purposes of Chapter 6123. of the Revised Code, the Ohio water development authority may:
(C) Make loans and grants to governmental agencies for the acquisition or construction of development projects by any such governmental agency and adopt rules and procedures for making such loans and grants;
(F) Issue development revenue bonds and notes and development revenue refunding bonds of the state, payable solely from revenues as provided in section 6123.06 of the Revised Code, unless the bonds be refunded by refunding bonds, for the purpose of paying any part of the cost of one or more development projects or parts thereof;
(I) Make and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers under Chapter 6123____
(P) Do all acts necessary or proper to carry out the powers expressly granted in Chapter 6123. of the Revised Code. Ohio Rev.Code § 6123.04. The OWDA may also contract with government agencies and private persons to fix the terms and conditions for the use or service of a facility financed by OWDA. The statute provides:
Any government agency or combination thereof may cooperate with the authority in the acquisition or construction of a development project and shall enter into such agreements with the authority as are necessary, with a view to effective cooperative action and safeguarding of the respective interests of the parties thereto,... including, without limitation,... contracting for the operation, leasing, or subleasing for such terms and with such person or governmental agency as maybe agreed upon____ The authority shall not enter into such a cooperative agreement with any governmental agency if the authority determines that the project to be acquired or constructed under the agreement would undermine the financial feasibility of an existing development project acquired or constructed under a cooperative agreement between the authority and another governmental agency because the proposed project would serve substantially the same geographic area as the existing project____
Ohio Rev.Code § 6123.13.
The district court found it “unquestionable” that the legislature contemplated the “use of anti-competitive measures to ensure the financial viability of its waste disposal facilities.” The court determined that OWDA’s general authority to carry out powers expressly granted, that the agency's duty to protect its financial interests in development projects, and that the prohibition on the financing of facilities competing with existing projects demonstrated a clearly articulated and affirmatively expressed state policy to displace competition with regulation.
The district court relied on Boulder as authority for its holding that the ordinance and agreement under challenge were “clearly comprehended” within the powers granted OWDA. In Boulder the Court held that “the term ‘granted’ necessarily implies an affirmative addressing of the subject by the State.” 455 U.S. at 55, 102 S.Ct. at 843. In Boulder, there was no specific grant of authority to regulate cable television from the state legislature; the city merely claimed the power under Colorado’s Home Rule Amendment. By contrast, in the instant case there was a specific grant of power by the state to OWDA to operate in the area of waste disposal and recovery. This grant of authority, the district court ruled, satisfied the requirement that the challenged anticompetitive action result from a state policy.
B. Analysis.
The validity of the district court’s finding that OWDA’s statutory mandate met the standard of a clearly articulated and affirmatively expressed state policy turns on a crucial ambiguity in Lafayette and Boulder. In those decisions the Court left unclear the degree of specificity in state law necessary to satisfy the standard applied to a nonsovereign state representative. A municipality, the plurality held in Lafayette, is not necessarily required “to point to a specific, detailed legislative authorization before it properly may assert a Parker defense.” However, there must be evidence that the state “authorized or directed a given municipality to act as it did.” 435 U.S. at 414, 98 S.Ct. at 1137. It is clear, however, that merely having the legal authority to engage in the challenged activities is insufficient. The municipalities in Lafayette were authorized by state law to own and operate utilities, but this power standing alone did not protect the allegedly anticompetitive actions of those utilities. Likewise, the City of Boulder was empowered under state home-rule provisions to take the actions that were attacked under the antitrust laws. The city’s power “to do as [it] please[s],” however, demonstrated only a “neutral” state policy regarding the ways and means that the city chose to exert its power. 455 U.S. at 55, 102 S.Ct. at 842.
OWDA’s authority to engage in the actions under challenge is somewhere in between a specific state directive and a general, “neutral” grant of powers. Although OWDA may have the power to enter into the agreement now in issue, the statute clearly does not express a state preference for regulation — or monopolistic control — of waste disposal. OWDA’s existence and function are perfectly consistent with a regime of open and free competition among private businesses that engage in waste disposal. Nothing in the statute declares a state policy regarding the organization of municipal waste disposal systems. As to the type of projects OWDA may finance— whether the projects monopolize or merely compete with private industry — the statute is silent. On the other hand, OWDA is authorized to promote the development of “safe and proper” waste disposal projects. To finance such developments, the agency is empowered to enter agreements “necessary or incidental” to the performance of its duties.
There is no question that a restraint which is expressly set forth in a legislative scheme for regulation is one that reflects a state policy to displace competition. See, e.g., California Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Where the restraint is not so expressed but is imposed by a nonsovereign state representative as an exercise of delegated powers, the court must examine the relationship between the restraint and the regulatory aims of the state. If the challenged actions bear an attenuated relationship to the statutory aims and the express powers so delegated, the actions cannot be deemed to have resulted from a clearly articulated and affirmatively expressed state policy to displace competition. For example, public regulation of utilities is justified as necessary to protect consumers from exploitation by a natural monopoly. This justification, however, will not support regulation that reaches beyond the scope of a natural monopoly’s powers into competitive markets. Absent express legislative direction for such a restraint, the regulation is not protected as state action under Parker. Cantor v. Detroit Edison, 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976).
If the challenged anticompetitive restraint of a nonsovereign state representative, for which there is no express statutory provision, is necessary to carry out the representative’s mandate, then a legislative intent to displace competition may be inferred from the legislature’s delegation of authority. In Corey v. Look, 641 F.2d 32 (1st Cir.1981), the plaintiff, a parking lot operator, brought an antitrust suit against a municipality and a public steamship authority. The plaintiff claimed that the town and authority had conspired to drive the plaintiff out of business in an effort to monopolize the market. The First Circuit held that the government bodies must demonstrate “by convincing reasoning that the challenged restraint is necessary to the successful operation of the legislative scheme that the state as sovereign had established.” This test was not
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ELY CONST. CO. v. TOWN OF TIMMONS-VILLE, S. C.
No. 5120.
Circuit Court of Appeals, Fourth Circuit.
Nov. 8, 1943.
John A. Chambliss, of Chattanooga, Tenn. (Sizer, Chambliss & Kefauver, of Chattanooga, Tenn., on the brief), for appellant.
P. H. McEachin, of Florence, S. C. (W. T. McGowan, of Timmonsville, S. C., and McEachin & Townsend, of Florence, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a judgment for defendant in an action instituted against the Town of Timmonsville, S. C., to recover the balance due on a promissory note. The court below denied recovery on the grounds that the note was issued without authority and in contravention of constitutional and statutory provisions and that it was barred by the statute of limitations. We think that the judgment should be sustained on both grounds.
It appears that the note was not a tax-anticipation certificate nor was it given for goods or services had and received for the benefit of the town and with reasonable expectation that they could and would be paid from revenue of the current year. Cf. United States Rubber Products v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144; Luther v. Wheeler, 73 S.C. 83, 52 S.C. 874, 4 L.R.A.,N.S., 746, 6 Ann.Cas. 754. On the contrary, it was given in payment for paving done after the proceeds of a bond issue authorized by the voters had been exhausted and with the understanding that it was to be paid for in future years. Its issuance clearly contravened Art. 8, Sec. 7, of the Constitution of South Carolina and Sec. 7442, of the South Carolina Code. Bolton v. Wharton, 163 S. C. 242, 161 S.E. 454, 86 A.L.R. 1101; Tarver v. Town of Johnston, 173 S.C. 333, 175 S. E. 821.
The action is admittedly barred by the statute of limitations unless the running of the statute is held to have been tolled by a letter written by an attorney at law to plaintiff with reference to settlement of the note. In the letter the attorney stated that he was acting for the town; but there is no evidence that he was properly authorized to bind it in this matter. See 37 C. J. 1136; 34 Am.Jur. 262; Taylor v. Perryville, 132 Md. 412, 415, 104 A. 475; Wurth v. City of Paducah, 116 Ky. 403, 76 S.W. 143, 105 Am.St.Rep. 225 and note; City of Houston v. Jankowskie, 76 Tex. 368, 13 S.W. 269, 18 Am.St.Rep. 57.
Affirmed.
Question: 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_appfed
|
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 "the federal government, its 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.
COMMONWEALTH OF KENTUCKY, DEPARTMENT OF EDUCATION, Petitioner, v. SECRETARY OF EDUCATION, UNITED STATES DEPARTMENT OF EDUCATION, Respondent.
No. 82-3319.
United States Court of Appeals, Sixth Circuit.
Argued June 13, 1983.
Decided Sept. 14, 1983.
Rehearing and Rehearing En Banc Denied Dec. 5, 1983.
Robert L. Chenoweth, Asst. Deputy Atty. Gen., and Chief Counsel (argued), Edward L. Fossett, Dept, of Educ., Frankfort, Ky., for petitioner.
Terrel H. Bell, Secretary of Educ., Dept, of Educ., Stephen H. Freid (Lead Counsel) (argued), Arnold Rosenthal, U.S. Dept, of Educ., Washington, D.C., for respondent.
Before MERRITT and KENNEDY, Circuit Judges, and WEICK, Senior Circuit Judge.
CORNELIA G. KENNEDY, Circuit Judge.
The Commonwealth of Kentucky, Department of Education (Commonwealth), appeals from the March 19, 1982 decision of the Secretary of Education, ordering the Commonwealth to refund $338,034.00 allegedly misspent in Title 1 programs during 1974. For the reasons set forth below, we reverse.
The former United States Department of Health, Education and Welfare, through its Department of Health, Education and Welfare Audit Agency (HEWAA), conducted an audit of Title I expenditures of local educational agencies (LEAs) in the Commonwealth. The period covered by the audit was July 1, 1967, through June 30, 1974, with the last phase of the audit having been concluded in September of 1974. The audit report charged inter alia that the Title I “readiness programs” instituted with the approval of the Kentucky Department of Education in 50 local school districts supplanted State and locally funded programs in violation of 20 U.S.C. § 241e(a)(3)(B) which requires:
Federal funds made available under this subchapter will be so used (i) as to supplement and, to the extent practical, increase the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and (ii) in no case, as to supplant such funds from non-Federal sources, * * * (emphasis added).
The HEWAA determination required a refund from the Commonwealth for fiscal year 1974 of $704,237.00.
The Commonwealth made an application for review of this final determination in January 1977, and in the latter part of 1979 a three-member Education Appeal Board (EAB) panel was appointed to consider the matter. The Initial Decision of the EAB, issued on June 23, 1981, ruled “that the readiness programs carried out by the 50 LEAs during [Fiscal Year] 1974 were not properly designed to supplement state and local expenditures for Title I children, that a supplanting violation had occurred, and that the full $704,237.00 must be refunded by the [state educational agency] SEA to the Assistant Secretary.”
Pursuant to 20 U.S.C. § 1234a(d) the Commonwealth was notified that the initial decision would become the final decision of the United States Department of Education unless the Secretary of Education, for good cause shown, modified or set aside the EAB’s decision. On August 27, 1981, in response to comments and recommendations filed by the Commonwealth and the United States Assistant Secretary for Elementary and Secondary Education, the Secretary of Education, Terrel H. Bell, remanded the audit to the EAB for further consideration. Secretary Bell instructed the EAB to determine whether the amount of $740,237.00 should be reduced in view of several factors including the more favorable pupil :teacher ratio in the readiness classes (13:1) as compared with that in the regular classes (27:1).
The EAB panel affirmed its earlier decision, but ‘for good cause shown’ Secretary Bell on review reduced the audit figure by 52%, representing the supplemental services received by students in the Title I readiness programs as a result of the significantly smaller pupil :teacher ratio. The amount ordered to be refunded by the Commonwealth was thus reduced to $338,034.00.
I.
On appeal to this Court, the Commonwealth argues that the Secretary did not have any authority to consider and make demand for a refund of Title I funds which had purportedly been misspent in 1974. As originally enacted, the ESEA did not expressly authorize the Secretary to demand a refund of misspent Title I funds. It was not until the Education Amendments of 1978, 20 U.S.C. § 2835, that provisions were adopted authorizing audit determinations and the collection from SEAs of Title I funds found to have been misspent. Accordingly, it is argued that the Secretary exceeded his statutory authority in ordering this refund.
This argument was definitively rejected by the Supreme Court in the recent decision of Terrel H. Bell, Secretary of Education v. New Jersey and Pennsylvania, — U.S. —, 103 S.Ct. 2187, 76 L.Ed.2d 313 (1983). There the Court held that the federal government has had, from the inception of the Act, the authority to recover misspent funds from states which had received grants under Title I. Eight Justices reasoned that although the authority of the Secretary to recover misspent funds did not become explicit until the Education Amendments of 1978, the pre-1978 version of ESEA contemplated that states misusing federal funds would incur a debt to the federal government for the amount misused. Accordingly, if supplanting occurred, the Secretary has the authority to order a refund.
II.
The Commonwealth argues in the alternative that even if the Secretary has the authority to order this refund, the record does not justify the determination that a supplanting, rather than a supplementing, of State and local funds occurred during fiscal year 1974. It is unclear what standard this Court should employ in reviewing the determination of the Secretary. As noted by Justice White in his concurring opinion in Bell, the cases reviewed in that decision
... do not involve any question as to the substantive standard by which a claim that a recipient has violated its Title I commitments is to be judged. Rather, they concern the abstract question whether the Secretary has the right to recover Title I funds under any circumstances. In my view, there is a significant issue whether a State can be required to repay if it has committed no more than a technical violation of the agreement or if the claim of violation rests on a new regulation or construction of the statute issued after the state entered the program and had its plan approved. (emphasis added)
Id., at —, 103 S.Ct. at 2199. In the instant case, we must address this “significant issue” left open in Bell. The only guidance provided by the majority in Bell appears at p. —, 103 S.Ct. at p. 2198:
[T]he States have an opportunity to litigate in the courts of appeal whether the findings of the Secretary are supported by substantial evidence and reflect application of the proper legal standards. § 455, 20 U.S.C. § 1234d(c); 5 U.S.C. § 706 (emphasis added).
Title I establishes financial support for LEAs to meet the special educational needs of educationally deprived children residing in school attendance areas having high concentrations of children from low income families. Congress provided that Title I funds were to be distributed to LEAs through SEAs upon application for the funds. The Commonwealth’s programs were administered through the Kentucky Department of Education. The implementing rules and regulations in effect in fiscal year 1974 reinforced the statutory requirement that Title I funds should not supplant State or local funds and should supplement those funds. 45 C.F.R. § 116.17(h) (1971) (transferred to 34 C.F.R. pt. 200) of the regulations provides in pertinent part:
Each application for a grant under Title I of the Act for educationally deprived children residing in a project area shall contain an assurance that the use of the grant funds will not result in a decrease in the use for educationally deprived children residing in that project area of State or local funds which, in the absence of funds under Title I of the Act, would be made available for that project area and that neither the project area nor the educationally deprived children residing therein will otherwise be penalized in the application of State and local funds because of such a use of funds under Title I of the Act. No project under Title I of the Act will be deemed to have been designed to meet the special educational needs of educationally deprived children unless the Federal funds made available for that project (1) will be used to supplement, and to the extent practical increase, the level of State and local funds that would, in the absence of such Federal funds, be made available for the education of pupils participating in that project; (2) will not be used to supplant State and local funds available for the education of such pupils; and (3) will not be used to provide instructional or auxiliary services in project area schools that are ordinarily provided with State and local funds to children in nonproject area schools.
The Commonwealth argues that no supplanting took place when it designed self-contained readiness classrooms. The Commonwealth points out that Title I readiness classrooms were not approved by the Kentucky Department of Education unless the LEAs maintained the same number of State and locally funded regular classroom teachers as they had before the readiness programs were established. Thus, from the LEAs’ standpoint they were supplementing the existing programs since their expenditures for existing regular classroom programs remained at the same level. By the same token they were not supplanting any of their existing programs or expenditures with the Title I self-contained classrooms. The Secretary counters:
We interpret the ... regulations to mean that the advent of Title I funds shall not result in a decrease in the use of State and local support for the education of the educationally deprived children residing in the project area. The SEA officials viewed supplanting as the failure of an LEA to employ the number of non-Title I teachers that State and local funds were made available for, by school and grade, based on average daily attendance (ADA) statistics. The SEA’s view does not relate to the per pupil expenditure and does not give the Title I student his fair share of services purchased with State and local funds. Further, the concept of a readiness program is to primarily prepare a child for the first grade. However, the SEA’s view permits the use of the readiness class to serve as a general educational first grade.
(Report on Review of Administration of the ESEA of 1975 Title I Projects at LEAs Administered by the Kentucky Department of Education for the Period July 1, 1967 through June 30, 1974, p. 28; JA: 34). Thus, the Secretary focuses on the expenditure per pupil.
In its initial decision the EAB wrote: The SEA devoted most of its evidence and much of its argument to proving that State and local fiscal effort was maintained at the school district, school and grade levels. The Assistant Secretary does not dispute this showing but considers it irrelevant, asserting that compliance must be judged with reference to State and local funds expended for the benefit of the specific pupils enrolled in readiness classes.
(Initial Decision of the EAB, June 23, 1981, at p. 8; JA: 69).
It cannot be said that the interpretation posited by the Secretary is “unreasonable.” The statutory and regulatory prohibitions against supplanting State and local funds with Title I funds can reasonably be applied with reference to expenditures at the level of the individual educationally deprived pupil, rather than at the level of either the LEA, the school, the grade, or the classroom. Nonetheless, in the instant case we do not feel that it is our task on appeal to review the reasonableness of the Secretary’s interpretation of Title I section 241e(a)(3)(B) and regulation section 116.17(h). We are not reviewing with reference to the future effect of the Secretary’s interpretation of a statute. Rather, in this appeal we are concerned with the fairness of imposing sanctions upon the Commonwealth of Kentucky for its “failure to substantially comply” with the requirements of section 241e(a)(3)(B) and 45 C.F.R. 116.17(h), as those requirements were ultimately interpreted by the Secretary.
We disagree with the Secretary’s conclusion that the statutory and regulatory provisions at issue were sufficiently clear to apprise the Commonwealth of its responsibilities under the Act. It cannot be inferred that the Commonwealth had notice of its obligations. The legislative history to Title I is replete with evidence that Congress left to the discretion of the participating States the responsibility to establish programs with Title I funds to strengthen educational opportunities for educationally deprived children.
Under the terms of the legislation, a local public school district may use funds granted to it for the broad purpose of programs and projects which will meet the educational needs of educationally deprived children in those school attendance areas in the district having high concentrations of children from low-income families. It is the intention of the proposed legislation not to prescribe the specific types of programs or projects that will be required in school districts. Rather, such matters are left to the discretion and judgment of the local public educational agencies since educational needs and requirements for strengthening educational opportunities for educationally deprived elementary and secondary school pupils will vary from State to State and district to district. What might be an acceptable and effective program in a school district serving a rural area may be entirely inappropriate for a school district serving an urban area, and vice ver-sa. There may be circumstances where a whole school system is basically a low-income area and the best approach in meeting the needs of educationally deprived children would be to upgrade the regular program. On the other hand, in many areas the needs of educationally deprived children will not be satisfied by such an approach.
S.Rep. No. 146, reported at [1965] U.S.Cong. & AdmimNews 1446, 1454.
It should be emphasized, ... that no suggested program is in itself mandatory upon a public school authority. The selection of an appropriate program or programs, for which State educational authority approval is sought, rests with the local educational agency.
Id., at 1456-57.
This is not to say that the interpretation of the statutory and regulatory requirements posited by the Commonwealth is controlling. On the contrary, the interpretation of the Secretary governs all future dealings. We hold only that in the absence of unambiguous statutory and regulatory requirements, and in the presence of a specific grant of discretion to the Commonwealth to develop and administer programs it believes to be consistent with the intentions of Title I, it is unfair for the Secretary to assess a penalty against the Commonwealth for its purported failure to comply substantially with the requirements of law, where there is no evidence of bad faith and the Commonwealth’s program complies with a reasonable interpretation of the law.
We find support for this position in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981), where the Supreme Court analyzed Congress’ power to place conditions on the grant of federal funds to States under the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 89 Stat. 486, as amended, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp. III).
Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. See e.g., Oklahoma v. CSC, 330 U.S. 127 [67 S.Ct. 544, 91 L.Ed. 794] (1947); King v. Smith, 392 U.S. 309 [88 S.Ct. 2128, 20 L.Ed.2d 1118] (1968); Rosado v. Wyman, 397 U.S. 397 [90 S.Ct. 1207, 25 L.Ed.2d 442] (1970). Unlike legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract." See Steward Machine Co. v. Davis, 301 U.S. 548, 585-598 [57 S.Ct. 883, 890-895, 81 L.Ed. 1279] (1937); Harris v. McRae, 448 U.S. 297 [100 S.Ct. 2671, 65 L.Ed.2d 784] (1980). There can, of course, be no know ing acceptance if a State is unaware of the conditions or is unable to ascertain what it expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously, (footnote omitted) Cf. Employees v. Department of Public Health and Welfare, 411 U.S. 279, 285 [93 S.Ct. 1614, 1618, 36 L.Ed.2d 251] (1973); Edelman v. Jordan, 415 U.S. 651 [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974). By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation, (emphasis added)
Pennhursf s requirement of legislative clarity arose in the context of imposing upon participating States an unexpected condition for compliance — interpreting the Act to impose a duty on the States to provide the “least restrictive treatment” possible to severely or profoundly mentally and physically handicapped individuals. See Bell, supra, U.S. at —, n. 17, 103 S.Ct. at 2197, n. 17. Declining to suppose that Congress intended to implicitly impose such an extensive obligation on participating States the Supreme Court wrote:
Our conclusion is also buttressed by the rule of statutory construction established above, that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds. That canon applies with greatest force where, as here, a State’s potential obligations under the Act are largely indeterminate. It is difficult to know what is meant by providing “appropriate treatment” in the “least restrictive” setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment. The crucial inquiry, however, is not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.
Pennhurst, supra, 451 U.S. at 24-25, 101 S.Ct. at 1543-1544 (emphasis added). See also Board of Education of the Hendrick Hudson Central School District Bd. of Ed., Westchester County v. Rowley, 458 U.S. 176, 204 n. 26, 102 S.Ct. 3034, 3049 n. 26, 73 L.Ed.2d 690 (1982) (where it was held that the phrase “free appropriate public education,” in the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., should not be read to impose upon States the requirement to maximize the potential of handicapped children, and that even if such was Congress’ intent, its failure to clearly articulate that requirement precludes an interpretation of the Act that imposes such a burden upon States receiving federal funds); and State of Louisiana, Dept. of Health and Human Services v. Block, 694 F.2d 430, 431 n. 2 (5th Cir.1982) (where Pennhurst, supra, and New Jersey v. Hufstedler, 662 F.2d 208 (3d Cir.1981), rev’d on other grounds sub nom. Terrel H. Bell, Secretary of Education v. New Jersey and Pennsylvania, — U.S. -, 103 S.Ct. 2187, 76 L.Ed.2d 313 (1983) were cited for the proposition that legislative clarity is required when seeking to impose a heavy, affirmative burden upon states receiving federal funds).
The statute and the regulations at issue here are concerned not only with the welfare of pupils but also with the policy that Title I programs should not impact adversely on the project area. From the practical standpoint of the school district, although there is a correlation between the number of students and classrooms and the number of teachers required, a reduction in students does not always result in a savings to the school district. Only a reduction in faculty or facilities can bring about a savings. Given a fixed number of dollars awarded to the school district, the requirement that average per pupil expenditures be transferred to the Title I classrooms, in proportion to the number of students in attendance there who are expected to advance a grade, cannot help but have an adverse impact on the funds available for the regular classroom when the number of regular classrooms and teachers cannot be reduced.
Where, as here, a determination of whether Title I funds supplant or supplement State and local funds depends upon whether the focus is on the district or the pupil, the statute and regulations cannot be said to be unambiguous. We cannot say that the Commonwealth received these funds with the “knowing acceptance” required by Pennhurst. The Commonwealth was unaware of the condition that the Secretary now seeks to impose.
Accordingly, we find that the Secretary was not justified in assessing a penalty against the Commonwealth for its purported failure to comply substantially with the requirements of 20 U.S.C. § 241e(a)(3)(B).
III.
The Commonwealth finally asserts that the HEW A A assessed damages through a series of estimates and that such deficiencies in the auditors’ methodology renders the assessment of damages arbitrary and capricious. Having concluded that it is unfair for the Secretary to find that the Commonwealth failed to comply substantially with the requirements of Title I, we need not address the issue of what damages would be appropriate under a contrary holding.
Accordingly, the decision of the Secretary is reversed.
. Title I of the Elementary and Secondary Education Act of 1965 (as amended) (ESEA), 20 U.S.C. §§ 241a, et seq.
. The “supplanting” provision was added to Title I by an amendment enacted in 1970— Pub.L. 91-230, § 109(a).
. 1109 (students in readiness classes in 50 LEAs expected to be promoted to the next grade level in the subsequent school year and, thus, expected to receive first or second grade credit for the time spent in the readiness program)
x $635.02 (cost per student)
$704,237.00
. Justice White, concurring, would have preferred to have held that the 1978 amendments, which unequivocally allow for repayments, should be applied retroactively.
. It is interesting to note that it is the success of the program which causes the problem. It is only when the child is able to advance to the regular classroom in the next grade that repayment is required. No reimbursement is required for those children who return to the regular first grade classroom.
. Generally, when neither legislative history nor other decisions of the Secretary definitively interpret the language of an ambiguous statute, courts will defer to the interpretation advanced by the agency empowered to administer the statute. See United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977). See also Meade Tp. v. Andrus, 695 F.2d 1006, 1009 (6th Cir.1982) (where this Court wrote that the interpretation of a statute by the agency charged with its enforcement is entitled to “ ‘more than mere deference or weight. (The regulation) can only be set aside if the Secretary exceeded his statutory authority or if (it) is arbitrary, capricious, or otherwise not in accordance with law.’ Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977); 5 U.S.C. § 706(2)(A).”); Satty v. Nashville Gas Co., 522 F.2d 850, 854 (6th Cir.1975), aff’d in part, vacated in part, and remanded, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977) (where this Court articulated the standard as one where “absent clear indicia in the form of legislative history that the agency interpretation is unreasonable or unnatural, we must defer to the commissioner’s construction of the statute ... ”).
. Contra, State of W. Va. v. Secretary of 3d., 667 F.2d 417, 420 (4th Cir.1981) (per curiam) (where, in resolving a dispute over ambiguity in the ESEA and regulations, the Fourth Circuit deferred to the interpretation advanced by the Secretary and affirmed the order of the Secretary requiring West Virginia to refund $125,000 misspent on the construction of an administrative office complex).
. See 20 U.S.C. § 1234b(a) and § 1234c(a) (1978) (where the Commissioner is said to act upon the belief that a recipient of funds had “failed to comply substantially” with any requirement of law applicable to such funds).
. In 1974, Congress adopted a further amendment to Title I, 20 U.S.C. § 241e(a)(l) (excess costs provision) in order to “reemphasize” that Title I funds were not to be used to supplant State and local funds. H.R.Rep. No. 805, 93rd Cong., 2d Session, 17, reprinted in [1974] U.S. Code Cong. & Admin.News 4093, 4108. We disagree with the Commonwealth’s contention that, prior to the adoption of the ‘excess costs’ provision, Section 241e(a)(3)(B) could not reasonably be interpreted to prohibit supplanting with reference to expenditures at the level of the individual educationally deprived student, and that, therefore, the Secretary is now attempting to retroactively enforce the ‘excess costs’ provision of the Act. However, the new provision makes it abundantly clear that Congress could have used language in the original enactment which would have been less ambiguous and would have more fairly apprised the State of its obligations.
. The Initial Decision of the EAB, June 23, 1981, pp. 8-9; JA: 69-70 concluded:
The Panel is persuaded that the statutory and regulatory provisions are sufficiently clear in their emphasis on the expenditure of funds for pupils — not LEA’s, schools or grade levels — to sustain the Assistant Secretary’s position. Clause (B) of . the statute 4 mandates the use of Federal funds to “supplement and ... increase” the level of funding that would otherwise “be made available from non-Federal sources for the education of pupils participating in programs and projects” assisted by Title I (emphasis added [by Board]).
The regulatory provision 5 is equally clear, even to the point of repetition. It requires assurances that use of grant funds not result in a decrease “in the use for educationally deprived children ” of the State and local funds; that “educationally deprived children” not be penalized in the application of State and local funds; that Federal funds be used to supplement non-Federal funds that would, absent Title I, “be made available for the education of pupils participating’ in Title I; and that Federal funds not supplant non-Federal funds “available for the education of such pupils.” (emphasis added [by Board] ).
4 20 U.S.C. § 241e(a)(3)(B) ...
5 45 C.F.R. 116.17(h) . ..
. Compare Alexander v. Califano, 432 F.Supp. 1182 (N.D.Cal.1977) (where Title I funds were found to “supplant” in violation of § 241e(a)(3)(B)).
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_state
|
33
|
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".
Edward F. OLSEN, Plaintiff-Appellant, v. BABY WORLD COMPANY, Inc. and Alan Daniels, Defendants-Appellees.
No. 71, Docket 23673.
United States Court of Appeals Second Circuit.
Argued Nov. 15, 1955.
Decided Dec. 5, 1955.
Robert A. Sloman, Detroit, Mich. (John C. Blair, Stamford, Conn., and William H. Parmelee, Pittsburgh, Pa., of counsel), for plain tiff-appellant.
Mock & Blum, New York City, for defendants-appellees.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
PER CURIAM.
Affirmed on the opinion of Judge Gal-ston, 126 F.Supp. 660.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_initiate
|
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.
Mickey GRECO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Continental Can Company, Inc. and United Papermakers and Paperworkers, AFL-CIO, Intervenors.
No. 14422.
United States Court of Appeals Third Circuit.
Argued Dec. 2, 1963.
Decided April 22, 1964.
Caesar C. Guazzo, New York City, for petitioner.
Paula Omansky (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Attys., National Labor Relations Bd., on the brief), for respondent.
Rothbard, Harris & Oxfeld, Newark, N. J., Samuel L. Rothbard, Abraham L. Friedman, Newark, N. J., on the brief, for intervenor-respondent, United Papermakers and Paperworkers, A.F.L.-CIO.
Charles J. Biddle, Drinker, Biddle & Reath, Philadelphia, Pa., W. S. Ryza, James G. Davis, Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, Ill., on the brief, for intervenor, Continental Can Company, Inc.
Before STALEY, GANEY and SMITH, Circuit Judges.
STALEY, Circuit Judge.
Petitioner Mickey Greco seeks review of an order of the National Labor Relations Board dismissing an unfair labor practice complaint based upon his charges that he and several other coworkers were wrongfully discharged from employment by the intervenor, Continental Can Company, Inc. The complaint alleged that both this employer and the certified representative of the employees, United Papermakers and Paperworkers, AFL-CIO, had engaged in discriminatory activity in violation of § 8(a) (1), (2) and (3), and § 8(b) (1) (A) and (2) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a) and (b). The trial examiner found that the charges of discrimination had been sustained by the evidence adduced at the hearing before him. A three member panel of the Board, see 29 U.S.C.A. § 153(b), adopted his findings of fact but, one member dissenting, concluded that the discharges were not unlawfully motivated. 136 N.L.R.B. 1135 (1962).
Greco was employed at a recently opened plant of Continental Can in Carte-ret, New Jersey. David Roggenkemper was the manager of this plant. Following an election of the employees on April 20, 1960, the papermaker union became the certified bargaining representative of these employees, and Local 790 was chartered to represent them. George Pesca-tore was the vice president and regional director for the union in this area, and James Russo was elected president of the local.
Negotiations between the company and the union for a new collective bargaining agreement commenced in June, 1960. Several meetings were held, but the major obstacle to an accord appeared to be a dispute over the basic hourly rate to be paid the employees; the union sought the rate paid at another of the company’s plants, $1.91 per hour, while the company offered $1.81 per hour at a meeting on July 13. On July 16 the union membership held a meeting to consider the company’s last offer and voted to strike the plant on July 25 unless the company increased its offer to $1.91 per hour. However, Pescatore directed Russo to call a special meeting on company premises for July 22 to consider an increase in the company’s proposal to $1.86 per hour. Russo and several members of the union vehemently protested the calling of this meeting in view of the previous strike vote of the membership. At this meeting Pescatore’s authority was challenged, a disturbance arose, Pescatore left the meeting, and, on his information, several union members were fired by Roggen-kemper.
As we have previously indicated, the trial examiner concluded that the discharges were discriminatorily motivated, and his evidentiary findings were adopted in toto by the Board. Nevertheless, the Board concluded that the employees were discharged for fighting. The petitioner contends that this determination constitutes an unwarranted reversal of the trial examiner on a question of fact, while the Board asserts that it merely drew a different inference or conclusion from the evidence adduced at the hearing.
We agree with the Board that its difference with the trial examiner concerned the ultimate conclusion to be inferred from the evidence. We further agree that this is within the province of the Board, provided that the inference it seeks to draw is such as “reasonably may be based upon the facts proven.” (Emphasis supplied.) Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372 (1945). Accord: Radio Officers’ Union, etc. v. National Labor Relations Board, 347 U.S. 17, 48-52, 74 S.Ct. 323, 98 L.Ed. 455 (1954); International Union of Electrical, Radio and Machine Workers v. National Labor Relations Board, 273 F.2d 243, 247 (C.A.3, 1959). The conclusion of the Board thus must be a reasonable and logical deduction from the evidence.
We turn then to an application of that standard to the findings of fact adopted by the Board as to the circumstances attending the discharges. These findings are based upon substantial evidence and, as printed in the Joint Appendix of the parties, comprise fifteen pages of the trial examiner’s Intermediate Report. Because they are of critical significance on the question of motivation for the discharges, we quote the following portion of them:
“There is no doubt Pescatore was working closely with the Company before and throughout the operations of the Carteret plant. Thus, when Russo refused to call a meeting for July 22, for the purpose of taking a second strike vote on the Company’s last offer, Pescatore, having already made arrangements with Roggenkemper for use of the cafeteria, promptly ordered Russo hold [sic] a meeting that afternoon. Shortly before the meeting, Pes-catore spoke to Russo and after questioning his ability to control the membership, Pescatore declared he would show him how to handle ‘these bums.’ In this spirit, Pesea-tore went to the meeting and proceeded to demonstrate his ability to control the membership. Pescatore, as detailed above, in unmistakable language told the members they were going to vote and vote his way, to accept the last offer, under threat of his revoking the strike sanction, and with the additional warning that if they went on strike the Company would shut down the plant. It is undisputed that Mickey Greco and his group vigorously and loudly protested Pescatore’s manner of conducting the meeting and his insistence that they vote and vote to accept the last offer. Again, there is no doubt commotion and bedlam immediately followed Pescatore’s announcement that the men start voting. The disorder, it strikes me, began when Jakovenko, who resented Pescatore’s attitude and went berserk, rushed toward Pescatore in a threatening manner and had to be restrained by a number of men. I am also firmly convinced Pescatore’s actions precipitated the whole affair. Certainly, his derogatory remarks about the membership, his conduct at the meeting, and his forthwith suspension of the local and its officers in plain violation of the International constitution, convinces me he dealt with the membership in high-handed, arbitrary, and dictatorial fashion and made it abundantly clear he would tolerate no opposition from the membership. * * *
“Within 10 or 15 minutes after the commotion began, seven of the employees were discharged by Rog-genkemper. The discriminatees asserted Roggenkemper gave no reason for their discharges other than he had been ordered to fire them. On the contrary, Roggenkemper claimed Pescatore reported Mickey Greco and his gang were fighting, so he fired the men for that reason. Pes-catore conceded none of the discrim-inatees, except Boguszewski and Ja-kovenko, engaged in any fighting and while he told Roggenkemper some ‘punks’ were screaming, he was not certain whether he stated Mickey Greco’s gang, as distinguished from Greco, participated in the fighting. The testimony of Russo, Clifford Williams, and Miller, which I credit, fully supports the testimony of the seven discrimina-tees as to the reason given by Rog-genkemper for their discharge. I, therefore, find that Pescatore requested the discharge of the seven men because of their opposition to him at the meeting and that Roggenkemper complied with request. I also find Rowe’s discharge later that day was for the same reason. There is, of course, no question but the men, while attending the union meeting, were engaged in protected concerted activities.
“Moreover, and apart from the foregoing credibility findings, the evidence shows that the men were discharged because of their opposition to Pescatore’s demand that they accept the Company’s last offer, not for violation of any company rule or policy against fighting on company property, as urged by Roggen-kemper. First, the only evidence indicating the existence of such a rule or policy is Roggenkemper’s cavalier statement that it has always been the policy of the Company to immediately discharge an employee for fighting on company premises. Secondly, there is no evidence or even contention that such a rule or policy was ever posted at the plant or that the employees were ever informed of such a policy or rule. Certainly, the Company cannot justify its dismissal of employees for violation of a rule which was neither publicized nor made known to the employees. But assuming the Company had a valid no-fighting rule, still it would not constitute a defense in this case. Here the alleged fighting occurred in the company cafeteria in the course of a union meeting, not while the men were performing their normal work duties. Manifestly, the no-fighting rule would have been inapplicable and ineffective had the meeting been held outside company premises, and I cannot distinguish that situation from the present one. It does not follow that by permitting the Union to hold a meeting on its premises that employee-members were still subject to the Company’s normal plant rules, the same as if they were working. Surely, it would be ridiculous to say that a rule prohibiting loud or excessive talking by employees would apply while the men were attending a union meeting. Indeed, Roggenkemper recognized that the union meeting had no connection whatever with plant business for he specifically placed the cafeteria out-of-bounds to all supervisory and office personnel while the meeting was in progress. Accordingly, I find and conclude the employees were not subject to normal plant working rules while attending the union meeting.
“Further, the manner in which Roggenkemper carried out the discharges negates the idea he fired the men for violation of the no-fighting rule. Admittedly, he summarily fired the men without any investigation as to whether a fight had occurred and whether the dischargees had even participated in any fighting. Again, there is no claim the employees caused any property damage and Roggenkemper made no inquiry along that line either before or after he discharged the employees. Instead, Roggenkemper quickly accepted Peseatore’s somewhat garbled complaint that the meeting was disorderly and hastily identified the dis-chargees through Pescatore and anyone who happened to be in the crowd. The means thus used to identify the men for discharge are certainly flimsy and unreliable and entitled to no weight, insofar as lending support to the charge that the dis-chargees actually engaged in fighting. I find it incredible and unbelievable that Roggenkemper, with 25 years’ experience with the Company, would discharge employees under the circumstances related by him.
“Again, the postdischarge conduct of the Union and the Company fully supports the finding that the dis-chargees were discriminatorily dismissed. Thus, shortly after the discharges had been accomplished Russo and Miller met Pescatore and inquired when the discriminatees might return to work and he responded they would never come back as long as he was regional director. Pescatore denied having an [sic] conversation on this subject, but, for the reasons already stated, I accept the testimony of Russo and Miller and find Pescatore made the statement attributed to him.
“As set forth above, the Union •committee met with Roggenkemper on July 27 in an effort to settle the work stoppage. It is undisputed Roggenkemper agreed that all the employees could return to work, except the dischargees. Russo, Genz, and Mesuk uniformly testified that Campbell asked why the men had been discharged and Roggenkemper replied it was for fighting on company property. Since no plant oificials were present, at the meeting, Campbell pressed Roggenkemper as to how he obtained the names of the men supposedly involved in the fight and Roggenkemper said he obtained the names from Pescatore. Russo and Genz quoted Roggenkemper as saying Pescatore had ordered him to fire these men. However, Mesuk could not remember if Roggenkemper made a statement to that effect. 1 T.f*5 *° rea®f Why °’ Gen"’ and Mesuk would manufacture such a story, so I accept and credit their es imony.
“Considering all the evidence I have no difficulty in finding the dis-criminatees were unlawfully discharged as alleged in the complaint and the Company s contention that it terminated the employees for violation of a no-fighting rule is purely pretextuous. 136 N.L.R.B. 1150-
In our view, these findings clearly preclude any inference that the employees were discharged for fighting. On the contrary, the mere recitation of them compels only one conclusion, that the discharges were discriminatorily motivated, Of course, the trial examiner acknowledged that a disturbance arose during the course of the union meeting. But his evidentiary findings, particularly those on credibility and the events attending the discharges, negate any inference that this disturbance was the reason for the company’s action. Accordingly, since the Board expressly adopted the evidentiary findings of the examiner, its conclusion cannot stand.
We wigh to emphasize that we do not question the p0Wer of the Board to make an independent evaluation of the evidence; to make itg own findings based up_ on substantial evidence, and to draw a conclusion different from that of its trial examiner based upon that evaluation, Whether the record in the case at bar would support findings from which it could reasonably be inferred that the employees were discharged for fighting is a question we need not and do not now decide. We h()ld only that the findings of fact adopted by the Board simply do not support the conclusion which it seeks f° infer,
Because of our disposition, we find it unnecessary to consider the legal signifiCance, if any> of the fact that the dis. charges resulted from activities occurring during the course of a union meet. jng. Further, we have examined the union’s contention that the petitioner unduly delayed seeking review of the order of tbe Board’ but find ü to be without TH6nt
The cause will be remanded to the Board for further proceedings in eon-f ormity with this opinion.
. Of course, since motivation is largely a question of intent, it is primarily an issue of fact. United States v. Minker, 312 F.2d 632, 634 (C.A.3, 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1903); Schauffler, etc. v. United Association of Journeymen & Apprentices, 230 F.2d 572, 576 (C.A.3), cert. denied, 352 U.S. 825, 77 S.Ct. 34, 1 L.Ed.2d 48 (1956).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
WEIGHT WATCHERS OF PHILADELPHIA, INC., Plaintiff-Appellant, v. WEIGHT WATCHERS INTERNATIONAL, INC., Defendant-Appellee.
Docket 71-2158.
United States Court of Appeals, Second Circuit.
Argued Jan. 4, 1972.
Decided Jan. 20, 1972.
Hammond & Schreiber, New York City (Alexander Hammond and Dale A. Schreiber, New York City, of counsel), for plaintiff-appellant.
Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendant-ap-pellee.
Before FRIENDLY, Chief Judge, and MOORE and OAKES, Circuit Judges.
FRIENDLY, Chief Judge:
Defendant moves to dismiss, for want of appellate jurisdiction, an appeal by plaintiff from an order permitting the defendant to communicate, on terms stipulated by the district judge, with potential members of a class on whose behalf plaintiff seeks to maintain a class action. This is the latest but, we are sure, not the last case in which we must determine to what extent orders long antedating the final disposition of such suits are appealable.
The complaint, in the District Court for the Eastern District of New York, alleged that defendant is engaged in the business of maintaining a system of franchises, some 95 in number, in various parts of the United States to promote its standardized weight-reduction and weight-control programs and to resell various goods in connection therewith. Plaintiff holds the franchise for Philadelphia, Pennsylvania. The complaint alleged that defendant has imposed on plaintiff and the other franchisees maximum and, indeed, uniform prices, thereby causing damages of at least $15,000,000 to the class. Plaintiff asserted that the suit was maintainable as a class action under F.R.Civ.P. 23(b) (1), (2) and (3). In accordance with local court rules, the action was assigned to Judge Bruchhausen, since he had previously been assigned a somewhat similar action, except for the lack of class allegations, wherein two other franchisees, Bergen Weight Watchers, Inc. and Weight Watchers of Hartford, Inc., sought large damages for alleged antitrust and other violations.
Shortly after the instant action was brought, Mr. Lippert, chairman of defendant’s board of directors, sent a letter to all franchisees. This announced^ that defendant would vigorously defend both actions, that it was seeking evidence helpful to that end, and that, in its view, “Widespread publicity that any Franchisees claim that they preferred to charge more money to a highly sensitive obese population would surely have a detrimental effect on the image of WEIGHT WATCHERS.” Later a similar letter was sent by defendant’s president, Mrs. Nidetsch. These precipitated a motion by plaintiff asking the court to exercise its regulatory powers under F.R.Civ.P. 23(d) so as to restrain defendant from communicating with any member or potential member of the class concerning the action without prior approval of the court or of plaintiff's counsel, to direct defendant to send a letter of retraction in a form proposed by plaintiff, and to require defendant to file a report of any communications that had been had with members of the class. In Judge Bruch-hausen's absence, this motion came on for hearing before Judge Costantino. The judge properly considered his duty to be to take only such action as he believed to be immediately required to preserve the status quo with a view to enabling Judge Bruchhausen to resume control upon his return. Taking note of the Suggested Local Rule No. 7 in the Manual for Complex and Multidistrict Litigation, and the Sample Pretrial Order 15, he directed that both plaintiff and defendant be restrained from further communications without the consent and approval of the court, in the form stated in Sample Pretrial Order 15. He reserved plaintiff’s other requests for decision by Judge Bruchhausen, save for directing the parties not to respond to any communications concerning the action except to acknowledge receipt and to make certain limited answers.
Upon Judge Bruchhausen’s return, defendant moved for a modification of Judge Costantino’s order. The court granted this. Its order provided that defendant might conduct discussions with franchisees concerning the subject matter of the action “in connection with contract negotiations requested in each instance by the franchisee” and incorporate any conclusion in any agreement resulting therefrom. This permission was subject to the conditions that counsel for the franchisee should be present at each negotiating session and review any new contract provision, that plaintiff's counsel should receive at least five days advance notice of the commencement of any such negotiations and of each negotiating session and be afforded full opportunity to express their views concerning the rights of the franchisees with respect to the subject-matter of the action, and that the last negotiating session with each franchisee prior to execution of a contract should be held at the offices of defendant’s counsel in New York City — a location convenient to plaintiff’s counsel. Plaintiff’s request for letters of retraction, which had been reserved by Judge Constantino, was denied. Plaintiff appealed from the order and moved for a stay. Upon defendant’s announcing that it intended to move promptly to dismiss the appeal for want of appellate juridiction, the stay was granted.
It is obvious that the order is not a “final decision” within 28 U.S.C. § 1291, in the ordinary sense of finally determining the rights of the plaintiff and the class it seeks to represent against the defendant. Indeed it makes no determination bearing upon these in the slightest degree. Plaintiff’s case for appealability under § 1291 thus rests on the assertion that the order falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). We have often indicated that Cohen must be kept within narrow bounds, lest this exception swallow the salutary ‘‘final judgment” rule. See Bancroft Nav. Co. v. Chadade S.S. Co., 349 F.2d 527, 529-530 (2 Cir. 1965); Donlon Industries, Inc. v. Forte, 402 F. 2d 935, 937 (2 Cir. 1968); West v. Zur-horst, 425 F.2d 919 (2 Cir. 1970).
When we compare the order here sought to be appealed with others implicating Cohen, the inapplicability of that decision becomes clear. An order, like that of the district court in Cohen, which refused to apply a statute requiring an undertaking for costs by the plaintiff before the suit could be prosecuted, deprived the defendant of the very benefit the legislature arguably intended to confer. Per contra, an order requiring such an undertaking when the court allegedly had no power to do this, as in Fielding v. Allen, 181 F.2d 163 (2 Cir.), cert. denied, 340 U.S. 817, 71 S.Ct. 46, 95 L.Ed. 600 (1950), and Chabot v. Nat’l Securities & Research Corp., 290 F.2d 657 (2 Cir. 1961), might prevent a plaintiff from entering the courtroom door. The order here can have no such drastic consequences. Its maximum effect, and this is wholly speculative, would be to cause settlements by so many franchisees — a course long favored by the law, cf. Williams v. First Nat’l Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910) — as to eliminate the numerosity which F.R.Civ.P. 23(a) (1) makes a prerequisite to a class action, leaving plaintiff nonetheless free to prosecute its own individual' claim, as two other franchisees were already doing.
Another important factor bearing on the application of the Cohen doctrine, which we mentioned in Donlon, supra, 402 F.2d at 937, is whether a decision will settle a point once and for all, as it did in the Cohen case, or will open the way for a flood of appeals concerning the propriety of a district court’s ruling on the facts of a particular suit. This case is of the latter sort. Plaintiff’s attempt to escape this conclusion by asserting that once a plaintiff brings a suit on behalf of a class, the court may never permit communications between the defendant and other members, even when, as here, both desire this, is in conflict not only with Suggested Local Rule No. 7 and Sample Pretrial Order 15, but with elementary considerations of common sense — and possibly, although we need not decide this, with a command of higher authority as well. Indeed, we are unable to perceive any legal theory that would endow a plaintiff who has brought what would have been a “spurious” class action under former Rule 23 with a right to prevent negotiation of settlements between the defendant and other potential members of the class who are of a mind to do this; it is only the settlement of the class action itself without court approval that F.R. Civ.P. 23(e) prohibits. Cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3 Cir. 1944) (Goodrich, J.) cert. denied, 325 U.S. 867, 65 S.Ct. 1404, 89 L. Ed. 1986 (1944).
Defendant properly relies also on our decisions, last reviewed in Korn v. Franchard Corp., 443 F.2d 1301, 1304-1306 (2 Cir. 1971), that an order under F.R.Civ.P. 23(c) (1) refusing designation as a class action is not appealable unless it rings “the death knell” on the named plaintiff’s ability to prosecute his own claim, even though there may be members of the class whose claims would be too small to permit individual prosecution ; it argues that if an order refusing class designation in this case would not have been appealable, the less serious action here taken cannot be. The ad dam-num, here alleged for the class and the fact that two other franchisees have felt able to proceed on their own, negate the possibility that successful negotiations with enough franchisees to eliminate the required numerosity for a class action, all of which is entirely speculative, would deprive plaintiff of its day in court. See Milberg v. Western Pacific R.R., 443 F.2d 1301, 1306-1307 (2 Cir. 1971), decided along with Korn, holding the death knell doctrine inapplicable when the named plaintiff and her husband had claims of $8,500. Indeed, plaintiff makes no contention of practical inability to proceed on its own behalf; rather it would distinguish Mil-berg, Caceres v. Int’l Air Transport Ass’n, 422 F.2d 141 (2 Cir. 1970), and City of New York v. Int’l Pipe & Ceramics Corp., 410 F.2d 295 (2 Cir. 1969), on the ground that the propriety of an order refusing class action designation can be considered on an appeal from the final judgment, whereas there will never be another chance for appellate consideration of the order here sought to be appealed. But we have often held that mere inability to secure review of an interlocutory order on appeal from the final judgment does not warrant permitting immediate review of such orders. See Flegenheimer v. General Mills, Inc., 191 F.2d 237 (2 Cir. 1951); Bancroft Nav. Co. v. Chadade S.S. Co., supra, 349 F.2d at 529-530; Donlon Industries, Inc. v. Forte, supra; West v. Zurhorst, supra, cf. Cushing v. Laird, 107 U.S. 69, 76, 2 S.Ct. 196, 27 L.Ed.2d 391 (1883). Congress has determined in its wisdom, and we think it was indeed wise, that some orders merely regulating the process of litigation can better be left to the unreviewable discretion of the district court rather than become the subject of appeal, whether from the interlocutory order or of the final judgment.
A second string to plaintiff's bow is that Judge Bruchhausen’s order modified an injunction previously granted by Judge Costantino and thus is ap-pealable under 28 U.S.C. § 1292(a) (1). This argument collides not only with the many decisions “that the mere presence of words of restraint or direction in an order that is only a step in an action does not make § 1292(a) (1) applicable,” see cases cited in International Prods. Corp. v. Koons, 325 F.2d 403, 406 (2 Cir. 1963), but also with our explicit decision there “to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint . . . and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.” Such a principle is peculiarly applicable in this case where the “injunction” was granted on an interim basis and expressly contemplated subsequent modification by the judge to whom the action had been assigned.
Plaintiff responds with a claim that the International Products opinion was overruled sub silentio by its writer in Wolf v. Barkes, 348 F.2d 994, 995 (2 Cir.), cert. denied, 382 U.S. 941, 86 S.Ct. 395, 15 L.Ed.2d 351 (1965). There, with a mere reference to § 1292(a) (1), we took jurisdiction of an appeal from an order refusing to enjoin a corporation, which was a party to a stockholders’ derivative action, from settling with certain defendants without compliance with what was then F.R.Civ. P. 23(c), now 23(e). The argument, while showing commendable diligence, is unsound. Apart from the fact that, as examination of the briefs confirms, the issue of appellate jurisdiction was not raised, the Wolf case is fairly distinguishable. So far as the settling defendants were concerned, the settlements there would destroy the claim plaintiffs had asserted on behalf of the corporation, leaving only a considerably less attractive claim that in making the settlements the directors had again breached their duty. The requested injunction was thus directed at preserving the substance of plaintiffs’ complaint from destruction by the corporation. Here, even if defendant should succeed in settling with so many franchisees that the court will be forced to deny class action status, plaintiff’s complaint will remain untouched. As we have, in essence, already noted, plaintiff has no legally protected right to sue on behalf of other franchisees who prefer to settle; F.R. Civ.P. 23(e), requiring court approval of the dismissal or compromise of a class action, does not bar non-approved settlements with individual members which have no effect upon the rights of others. Cf. Webster Eisenlohr, Inc. v. Kalodner, supra.
Plaintiff concludes with the standard request that if we hold the order unappealable, we should treat the appeal as a motion for leave to file a petition for mandamus. We make the standard responses. We will so treat it, but will deny it, since the order was well within the wide range of discretion in the management of class actions necessarily accorded the district judge by F. R.Civ.P. 23(d). As said in Donlon Industries, Inc. v. Forte, supra, 402 F.2d at 937, “we do not — indeed may not — issue mandamus with respect to orders resting in the district court’s discretion, save in most extraordinary circumstances not remotely presented here.” See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Pfizer, Inc. v. Lord, 449 F.2d 119 (2 Cir. 1971).
The motion to dismiss the appeal is granted. Treating the appeal as a request for leave to file a petition for mandamus, we deny it. We vacate the stay.
. We do not here pass on the problem with respect to settlement that would exist when an action has been designated as a class action under F.R.Civ.P. 23(c) (1) and a member of the class has not requested exclusion under F.R.Civ.P. 23(c) (2).
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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sc_respondent
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028
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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.
BECK v. ALABAMA
No. 78-6621.
Argued February 20, 1980
Decided June 20, 1980
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 646. Marshall, J., filed an opinion concurring in the judgment, post, p. 646. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 646.
David Klingsberg argued the cause for petitioner. With him on the briefs were John A. Herfort, Jay Wishingrad, and John L. Carroll.
Edward E. Carnes, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Charles A. Graddick, Attorney General.
MR. Justice Stevens
delivered the opinion of the Court.
We granted certiorari to decide the following question:
“May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?” 444 U. S. 897.
We now hold that the death penalty may not be imposed under these circumstances.
Petitioner was tried for the capital offense of “[rjobbery or attempts thereof when the victim is intentionally killed by the defendant.” Under the Alabama death penalty statute the requisite intent to kill may not be supplied by the felony-murder doctrine. Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense. Instead, the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. If the defendant is convicted and the death penalty imposed, the trial judge must then hold a hearing with respect to aggravating and mitigating circumstances; after hearing the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole.
In this case petitioner’s own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner’s version of the events, he and an accomplice entered their victim’s home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.
Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he “must be discharged” and “he can never be tried for anything that he ever did to Roy Malone.” Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty.
In the courts below petitioner attacked the prohibition on lesser included offense instructions in capital cases, arguing that the Alabama statute was constitutionally indistinguishable from the mandatory death penalty statutes struck down in Woodson v. North Carolina, 428 U. S. 280, and Roberts v. Louisiana, 428 U. S. 325. The Alabama Court of Criminal Appeals rejected this argument on the ground that the jury’s only function under the Alabama statute is to determine guilt or innocence and that the death sentence it is required to impose after a finding of guilt is merely advisory. In a brief opinion denying review, the Alabama Supreme Court also rejected petitioner’s arguments, citing Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122, in which it had upheld the constitutionality of the Alabama death penalty statute against a similar challenge. 365 So. 2d 1006, 1007 (1978).
In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant’s guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction. In response, Alabama argues that the preclusion of lesser included offense instructions does not impair the reliability of the factfinding process or prejudice the defendant in any way. Rather, it argues that the apparently mandatory death penalty will make the jury more prone to acquit in a doubtful case and that the jury’s ability to force a mistrial by refusing to return a verdict acts as a viable third option in a case in which the jury has doubts but is nevertheless unwilling to acquit. The State also contends that prohibiting lesser included offense instructions is a reasonable way of assuring that the death penalty is not imposed arbitrarily and capriciously as a result of compromise verdicts. Finally, it argues that any error in the imposition of the death penalty by the jury can be cured by the judge after a hearing on aggravating and mitigating circumstances.
I
At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice Brennan explained in his opinion for the Court in Keeble v. United States, 412 U. S. 205, 208, providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard:
“Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault — -could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions.” Id., at 212-213 (emphasis in original).
Alabama’s failure to afford capital defendants the protection provided by lesser- included offense instructions is unique in American criminal law. In the federal courts, it has long been “beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, supra, at 208. Similarly, the state courts that have addressed the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it. Indeed, for all noncapital crimes Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. 5, supra.
While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments:
“[D]eath is a different kind of punishment from any other which may be imposed in this country.... From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 357-358 (opinion of Stevens, J.).
To insure that the death penalty is indeed imposed on the basis of “reason rather than caprice or emotion,” we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.
II
Alabama argues, however, that petitioner’s factual premise is wrong and that, in the context of an apparently mandatory death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination. The State argues that, because the jury is led to believe that a death sentence will automatically follow a finding of guilt, it will be more likely to acquit than to convict whenever it has anything approaching a reasonable doubt. In support of this theory the State relies on the historical data described in Woodson v. North Carolina, 428 U. S., at 293 (opinion of Stewart, Powell, and Stevens, JJ.), which indicated that American juries have traditionally been so reluctant to impose the death penalty that they have “with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict.”
The State’s argument is based on a misreading of our eases striking down mandatory death penalties. In Furman v. Georgia, 408 U. S. 238, the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the “wanton” and “freakish” imposition of the penalty. Id., at 310 (Stewart, J., concurring). In response to Furman several States enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in Woodson v. North Carolina, in so doing the States “simply papered over the problem of unguided and unchecked jury discretion.” 428 U. S., at 302 (opinion of Stewart, Powell, and Stevens, JJ.). For, as historical evidence indicated, juries faced with a mandatory death penalty statute often created their own sentencing discretion by distorting the fact-finding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman.
The Alabama statute, which was enacted after Furman but before Woodson, has many of the same flaws that made the North Carolina statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.
In Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North Carolina and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty. However, because the death penalty is mandatory, the State argues that the jury will be especially careful to accord the defendant the full benefit of the reasonable-doubt standard. In the State’s view the end result is a perfect balance between competing emotional pressures that ensures the defendant a reliable procedure, while at the same time reducing the possibility of arbitrary and capricious guilt determinations.
The State’s theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise. Moreover, it seems unlikely that many jurors would react in the theoretically perfect way the State suggests. As Justice Shores stated in dissent in Jacobs v. State, supra, at 651-652:
“The Supreme Court of the United States did remark in Furman, infra, and again in Woodson, supra, that this nation abhorred the mandatory death sentence.... I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury’s deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience h'as taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience....”
In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfind-ing process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason— its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.
Ill
The State also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the State argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the State may reindict on the capital offense or on lesser included offenses. In this case the jury was instructed that a mistrial would be declared if it was unable to agree on a verdict or if it was unable to agree on fixing the death penalty; it was also told that, in the event of a mistrial, the defendant could be tried again. Record 743.
We are not persuaded by the State’s argument that the mistrial “option” is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper case — contrary to the State’s assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in non-capital cases despite the availability of the mistrial “option” indicates that such instructions provide a necessary additional measure of protection for the defendant.
The State’s second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a “third option.”
If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State’s Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury’s factfinding function.
Accordingly, the judgment of the Alabama Supreme Court is Reversed.
There are 14 capital offenses under the Alabama statute, Ala. Code §§ 13-11-2 (a) (1) — (14) (1975):
“(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant;
“(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;
“(3) Rape when the victim is intentionally killed by the defendant; camal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have camal knowledge, when the victim is intentionally killed by the defendant;
“(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant;
“(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard;
“(6) Any murder committed while the defendant is under sentence of life imprisonment;
“(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire;
“(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant;
“(9) Willful setting off or exploding dynamite or other explosive under circumstances now punishable by section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;
“(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts;
“(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity;
“(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft;
“(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or
“(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness.”
Alabama Code § 13-11-2 (b) (1975) states that “[ejvidence of intent under this section shall not be supplied by the felony-murder doctrine.” In Ritter v. State, 375 So. 2d 270, 275 (1979), cert, pending, No. 79-5741, the Alabama Supreme Court held that the State could not satisfy its burden of proof under the new death penalty statute simply by showing that the defendant intended to commit robbery or even by showing that he should have known that there was a substantial possibility that someone would be killed. Although the State is not required to prove that the defendant was the actual triggerman, it must show that he had a “particularized intent” to kill the victim or that he “sanctioned and facilitated the crime [of intentional killing] so that his culpability is comparable to that of” the actual killer.
Alabama Code § 13-11-2 (a) (1975) provides:
“If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_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.
Orlando CORIZ, Jr., By and Through next friends Orlando CORIZ and Bernice D. Coriz, Plaintiffs-Appellants, v. Arthur MARTINEZ and Carlos Guillen, in their individual capacities only, Defendants-Appellees.
No. 89-2313.
United States Court of Appeals, Tenth Circuit.
Oct. 16, 1990.
John B. Roesler, Smith & Roesler, P.C., Santa Fe, N.M., for plaintiffs-appellants.
Daniel H. Friedman, Simons, Cuddy & Friedman, Santa Fe, N.M., for defendants-appellees.
Before ANDERSON, BARRETT, Circuit Judges, and CHRISTENSEN, District Judge.
The Honorable A. Sherman Christensen, Senior Judge, United States District Court for the District of Utah, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
Plaintiff-appellant Orlando Coriz Jr. appeals a summary judgment entered against him on his procedural due process claim on the grounds that the defendants were qual-ifiedly immune. We affirm.
In the fall of 1987, defendant Guil-len, an aide to defendant Martinez, a gym teacher at Española Valley High School, threw Coriz to the floor in an effort to maintain discipline. Coriz suffered a broken arm and filed suit under 42 U.S.C. § 1983, alleging, inter alia, that his right to procedural due process had been violated because he had no adequate post-deprivation remedy. The district court granted defendants’ motion for summary judgment on this claim, finding that they were quali-fiedly immune because the inadequacy of Coriz’s post-deprivation remedy was not clearly established.
In a situation such as this, “where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest,” Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 987, 108 L.Ed.2d 100 (1990), “postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide,” id. at 985. “[A]n unauthorized intentional deprivation ... by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984).
“[Gjovernment officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “[Ojnce a defendant raises a qualified immunity defense the plaintiff assumes the burden of showing that the defendant has violated clearly established law.” Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990).
Coriz has failed to show that it was clearly established that New Mexico did not provide an adequate post-deprivation remedy. As this court noted in Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988), federal judges in New Mexico had split on the question of whether the state provided adequate post-deprivation remedies for students whose procedural due process rights were allegedly violated by excessive punishment.
Coriz argues that the Harlow inquiry into whether the law was clearly established should apply only to the defendants’ acts, not to the adequacy of the remedies available to redress those acts. We concede that this is an unusual application of qualified immunity, but we conclude that the district court applied the law correctly. The right Coriz claims the defendants violated is not simply to be free from random, unauthorized deprivations of liberty, but to be free from such deprivations in the absence of adequate post-deprivation remedies. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981) (“Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty or property by the State. The Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ”); see also Hudson v. Palmer, 468 U.S. at 533, 104 S.Ct. at 3203 (“the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy”). Because of the uncertain state of the law, the defendants’ “actions could reasonably have been thought consistent with the right[] they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).
The judgment of the district court is AFFIRMED.
. Coriz’s substantive due process and other claims were tried to a jury, which found against him.
The defendants contend that the adverse verdict on the substantive due process claim "moots” Coriz’s procedural due process claim. We disagree. There are
three categories of corporal punishment. Punishments that do not exceed the traditional common law standard of reasonableness are not actionable; punishments that exceed the common law standard without adequate state remedies violate procedural due process rights; and, finally, punishments that are so grossly excessive as to be shocking to the conscience violate substantive due process rights, without regard to the adequacy of state remedies.
Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). The jury’s decision that the punishment in this case did not reach the third level in no way foreclosed a finding that the punishment reached the second level.
. Coriz, quoting our statement in Garcia that "conflict is relevant to the Harlow inquiry, but not controlling,” 817 F.2d at 658, contends that the district erred by relying solely upon this split within New Mexico in concluding that the law was not clearly established. The Garcia rule only applies to interjurisdictional conflicts. See Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). When there is conflict within a jurisdiction, it cannot be doubted that the law there is not clearly established.
. The district court also could have certified to the New Mexico Supreme Court the question of whether Coriz had a state-law remedy. If the answer was affirmative, Coriz’s claim would fail, for the absence of an adequate post-deprivation remedy is an element of his claim.
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_civproc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
Bhupendra C. PATEL, also known as “Ben” Patel, and Meena B. Patel, his wife, Plaintiffs-Appellants, v. Richard C. GAYES, M.D., Thomas Engel, M.D., and Evangelical Health Systems Corporation, doing business as Good Shepherd Hospital, an Illinois corporation, Defendants-Appellees.
No. 91-2210.
United States Court of Appeals, Seventh Circuit.
Argued April 2, 1992.
Decided Jan. 21, 1993.
Rehearing and Rehearing En Banc Denied March 29, 1993.
Kenneth C. Chessick, John W. Fisk (argued), Daniel L. Giudice, Schaumburg, IL, for plaintiffs-appellants.
John Joseph Mustes (argued), Thomas P. Hartnett, Kathleen A. Bridgman, Connelly, Mustes, Schroeder, John N. Seibel, Cassi-day, Schade & Gloor, Chicago, IL, for defendants-appellees.
Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge.
This is an appeal from a jury verdict for the defendant, Dr. Richard Gayes, in a medical malpractice action. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). For the reasons that follow, we affirm.
I
BACKGROUND
On October 9, 1986, Bhupendra Patel underwent a cardiac stress test arranged by his physician, Dr. Richard Gayes, and performed by Dr. Thomas Engel, a cardiologist. The test revealed abnormal activity that indicated that Mr. Patel was suffering from heart disease. Dr. Engel informed Dr. Gayes of the results. That same day, Dr. Gayes informed Mr. Patel that the results of the test were abnormal, but he did not instruct him to take any special precautions. Two days later, Mr. Patel moved and serviced a sump pump weighing thirty pounds. Early the following morning, he suffered a heart attack. Following his heart attack, Mr. Patel was treated by Drs. Susarla and Robin.
Mr. Patel and his wife, Meena Patel, brought the present civil action against Dr. Gayes for negligent malpractice. Specifically, they allege that the heart attack could have been prevented had Dr. Gayes cautioned Mr. Patel to avoid strenuous or stressful activities until further tests were performed. The Patels brought their claim in federal court pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). A jury found Dr. Gayes was not liable, and the district court subsequently denied the Pa-tels’ request for a new trial. For the reasons that follow, we now affirm.
II
ANALYSIS
Mr. Patel and his wife allege four separate trial errors: (1) that the court erred in excluding opinion testimony from two of the physicians who treated Mr. Patel; (2) that the court erred in not reading four proposed jury instructions, and in altering the language of a fifth; (3) that the court erred in preventing certain hypothetical questions from being asked to the Patels’ expert witness; and (4) that the court erred in excluding certain evidence on the scope of damages. We address each of these contentions in turn.
1. Exclusion of expert testimony from treating physicians
During discovery, Dr. Gayes served an interrogatory pursuant to Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure. He sought the names of all experts who would testify at trial, the subject matter on which they were expected to testify, and the substance of the facts and opinions that they were expected to give. The Patels responded that their only expert would be Dr. John Vyden, a cardiologist.
Prior to trial, Dr. Gayes filed a motion in limine to prevent Drs. Susarla and Robin, Mr. Patel’s subsequent treating physicians, from giving expert testimony because they had not been identified as experts in the Patels’ response to the Rule 26(b)(4) interrogatory. Dr. Gayes had deposed both doctors during discovery. In an in limine proffer of testimony, both Dr. Susarla and Dr. Robin gave opinions on the standard of care to which Dr. Gayes should have adhered. After defense objections, the court disallowed this testimony because the Pa-tels had not identified these two physicians as experts under Rule 26.
As a preliminary matter, we note that “we review a district court’s decision to exclude expert testimony under an abuse of discretion standard, and the trial court’s determination will be affirmed unless it is ‘manifestly erroneous.’ ” Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir.1992) (citations omitted). Federal Rule of Civil Procedure 26(b)(4)(A)(i) provides:
A party may through interrogatories require any other .party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
If a party fails to adhere to the standards of Rule 26(b), the district court may, in its discretion, bar the party from presenting that expert’s testimony. Blumenfeld v. Stuppi, 921 F.2d 116, 117 (7th Cir.1990).
The text of Rule 26(b)(4) would appear to require the disclosure of all persons who would provide expert testimony at trial. However, the Advisory Committee Notes and cases interpreting the rule apply a more narrow interpretation. Specifically, the Notes state that “the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an ..expert should be treated as an ordinary witness.” Fed.R.Civ.P. 26(b)(4)(A), Advisory Committee Note. Consequently, an expert need not be identified if he was “a viewer or actor with regard to the disputed question.” Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir.), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 296 (1986).
We must decide whether Drs. Susarla and Robin acquired their opinions about the correct duty of care directly through their treatment of Mr. Patel. If so, the Patels were not required to identify them as expert witnesses under Rule 26(b)(4), and the court erred in excluding their testimony. The Patels contend that they did hot have to identify the physicians because “these experts did not become involved in this case in anticipation of litigation, but became involved as treating physicians.” Appellant’s Br. at 25. Dr. Gayes counters that Drs. Susarla and Robin needed to be identified as experts because their proposed testimony “went beyond the substantive and temporal scope” of their treatment of Mr. Patel. Appellee’s Br. at 18. As a result, their opinions “went beyond [their] professional relationship with Ben Patel, and into the realm of pure expert testimony.” Id. at 22.
In order to determine if an expert need be identified before trial, Rule 26 focuses not on the status of the witness, but rather on the substance of the testimony. See Nelco Corp., 80 F.R.D. at 414 (“[u]nder Rule 26(b)(4)(A), a witness sought to be discovered may be an ‘expert’ as to some matters and an ‘actor’ as to others.”); accord Quarantillo, 106 F.R.D. at 437. Under the Federal Rules, an expert must be identified if his testimony does not come from his personal knowledge of the case, Jenkins, 785 F.2d at 728, or if his knowledge was “acquired or developed in anticipation of litigation or for trial.” Grinnell Corp. v. Hackett, 70 F.R.D. 326, 331 (D.R.I.1976). The testimony of Drs. Susar-la and Robin with respect to the standard of care falls within this category. As Dr. Gayes points out, at least one of the documents upon which the physicians were asked to comment, the electrocardiogram (EKG), was not used by them to treat Mr. Patel. Therefore, their knowledge, in this instance, was not based on their observations during the course of treating his illness. Moreover, the physicians were questioned about their opinion of the general medical standard of care within the community. As the district court determined, this is “classic” expert testimony. A witness would formulate such an opinion only when preparing for litigation. Accordingly, we cannot conclude that the district court’s ruling was “manifestly erroneous.”
2. Jury instructions
The Patels next contend that the district court committed five reversible errors in its handling of the jury instructions. Specifically, the court refused to read four of the Patels’ proposed instructions and substituted the words “wrongful conduct” for “negligence” in the proposed jury instruction on damages. Our review of a district court’s choice in jury instructions is limited.
“In diversity cases, state law determines the substance of jury instructions, while federal law governs the procedure in formulating the instructions and the manner in which they are given.” Simmons Inc. v. Pinkerton’s Inc., 762 F.2d 591, 595 (7th Cir.1985). Moreover, we review jury instructions only to determine if “the instructions as a whole were sufficient to inform the jury correctly of the applicable law.” United States v. Villarreal, 977 F.2d 1077, 1079 (7th Cir.1992). Consequently, “when assessing the adequacy of jury instructions given at trial, we consider not only ‘the instructions as a whole, but [also] ... the opening statements, the evidence, and the closing argument’ to determine if the jury was adequately informed of the applicable law.” Smith v. Chesapeake & Ohio Ry., 778 F.2d 384, 387-88 (7th Cir.1985). With these standards in mind, we turn to proposed jury instruction numbers 9, 15, 16, and 22, which were refused in this case.
Proposed Instruction 9 would have instructed the jury that it could draw an adverse inference against Dr. Gayes for failing to introduce into evidence an American Heart Association study upon which a substantial portion of his testimony was based. Instruction 9 is based upon Illinois Pattern Civil Jury Instruction No. 5.01, which by its terms is only appropriate when the evidence withheld was not readily available to the other party. Illinois Pattern Jury Instructions No. 5.01 (West 3d ed. 1992) (hereinafter IPI); Myre v. Kroger Co., 176 Ill.App.3d 160, 125 Ill.Dec. 713, 715, 530 N.E.2d 1122, 1124 (1988). Whether to give IPI No. 5.01 is a matter within the sound discretion of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771, 105 Ill.Dec. 642, 648, 504 N.E.2d 927, 933 (1987). In the present case, the challenged evidence was a study issued by the American Heart Association, which presumably the Patels could have obtained on their own. Moreover, the Patels were permitted to argue to the jury the fact that the study had not been introduced. Accordingly, we cannot accept the contention that the Pa-tels were prejudiced by the trial court’s decision.
Proposed Instruction 15 would have instructed the jury that at times a physician’s duty of due care requires him to bring a specialist in to assist him. At trial the Patels argued that Dr. Gayes should have hospitalized Mr. Patel for further tests once Dr. Gayes informed him of the stress test results. Consequently, the district court reasoned that an instruction on the duty to call in a specialist was subsumed within the argument that Dr. Gayes should have hospitalized Mr. Patel. Tr. of Mar. 7, 1991 at 820. The ruling of the district court was not reversible error.
Proposed Instruction 16 would have instructed the jury that a cardiologist may properly delegate to a patient’s regular physician the duty of explaining the results of a stress test. Because the Patels voluntarily dismissed Dr. Engel from the suit, the district court’s decision not to give such a specific instruction directing attention to that physician’s conduct was within the court’s sound discretion and did not result in an unfair trial.
Proposed Instruction 22 would have instructed the jury that Mr. Patel could recover damages if the heart attack aggravated a pre-existing coronary disease. The instructions actually read to the jury contained no reference to pre-existing injuries. However, at trial Dr. Vyden, the Patels’ expert, stated that Mr. Patel’s heart attack aggravated his already existing condition of coronary artery disease. If, as was the Patels’ theory, Dr. Gayes would have been able to prevent the heart attack if he had checked Mr. Patel into a hospital, then it appears, in a sense, that his negligence would have “caused” (or at least would have “contributed to”) the aggravation of Mr. Patel’s disease. Dr. Gayes does not dispute this theory. Instead, he asserts that the coronary artery disease Mr. Patel suffered was not made worse by his conduct, rather that the condition progressed naturally into a heart attack.
Under Illinois case law, a plaintiff is generally entitled to an instruction on the aggravation of a pre-existing injury if there is a sufficient evidentiary basis to permit a jury to find that the defendant’s conduct made a pre-existing injury worse. Tracy v. Village of Lombard, 116 Ill.App.3d 563, 71 Ill.Dec. 838, 847, 451 N.E.2d 992, 1001 (1983). The district court was of the view that a pre-existing injury instruction was not appropriate on the facts of this case:
The pre-existing ailment was coronary artery disease, blockage. How this ailment was aggravated is not shown. It’s really not an aggravation case.
Tr. of Mar. 7, 1991 at 819. The jury was instructed that it could assess damages for disability and for pain and suffering caused by Dr. Gayes’ alleged negligence. We believe that these instructions, when read as a whole, sufficiently depicted the Patels’ theory of liability that there was no real risk that the jury was misguided by the omission of a pre-existing injury instruction. Accordingly, the district court did not commit reversible error in omitting the proposed instruction.
The Patels also contest the district court’s substitution of the words “wrongful conduct” for “negligence” in the damage instruction, which was modeled after IPI No. 30.01. We cannot say that the district court’s choice of instruction phrasing amounted to an abuse of discretion. Moreover, because the jury did not find Dr. Gayes liable at all, a prerequisite for awarding damages under any instructions tendered, any error in the precise wording of the damages instructions would have been harmless.
3. The hypothetical question to Dr. Vyden
As noted above, prior to trial, Dr. Gayes requested from the Patels the identity of any expert witnesses that they sought to call, as well as the substance of any testimony that these witnesses would give, and the facts upon which they would base that testimony. In their response, the Patels identified Dr. Vyden as a medical expert and stated that he would discuss, in part, the effect on Mr. Patel of social dancing the evening before his heart attack. Subsequent to answering the interrogatory, it was learned that Mr. Patel had not been dancing the evening before the attack. However, he had moved and serviced a sump pump the morning the incident occurred. Under Rule 26(e)(1)(B), the Pa-tels were required to supplement their interrogatory response regarding Dr. Vyden’s testimony to correct this factual error; they failed to do so. Prior to trial, the court granted Dr. Gayes’ motion in limine to limit the Patels’ expert to testifying only to opinions previously disclosed during discovery.
At trial, Dr. Vyden testified that during his deposition he erroneously had believed that Mr. Patel had been dancing the evening before his attack. The Patels’ counsel then attempted to elicit from him, through the use of hypothetical questions, the effect that moving a sump pump would have had on Mr. Patel. The court barred this testimony because the information about the sump pump had not been disclosed to Dr. Gayes previously. The Patels claim that the exclusion of this testimony was erroneous because their question was a proper hypothetical to an expert. In support of this argument, they cite a number of Illinois state court cases approving the use of hypotheticals.
The Patels’ argument is misplaced because the district court excluded this information as a sanction for failing to conform with the disclosure requirements of Rule 26(e), not because the questions eliciting it had been improperly framed. Tr. of Mar. 7, 1992 at 449-50. Under the Federal Rules, the district court has the discretion to impose sanctions on a party if that party fails to meet the requirements of Rule 26. Blumenfeld v. Stuppi, 921 F.2d 116, 117 (7th Cir.1990). Among the sanctions available to the court for a violation of Rule 26(e) are “exclusion of evidence, continuance, or other action as the court might deem appropriate.” Fed.R.Civ.P. 26(e), Advisory Committee Notes. Accordingly, unless the district court abused its discretion in excluding the evidence, its decision will not be disturbed on appeal. We find that no abuse of discretion occurred.
4. Exclusion of damage evidence
The district court excluded expert testimony about Mr. Patel’s alleged reduced life expectancy, his risk of a second heart attack, and his personal fear of another heart attack. Mr. Patel claims that it was established to a reasonable degree of certainty that he was likely to have another heart attack and that his life span had been shortened by the heart attack. Consequently, he claims that the district court erred in excluding this evidence from the jury’s calculation of damages. The Patels presented their arguments in response to a series of in limine motions to exclude the evidence. The district court concluded that this evidence was too speculative in the absence of expert testimony that would illustrate the risk to a reasonable medical certainty. Tr. of Dec. 28, 1990 at 24-33. We cannot say that this determination was unreasonable. Accordingly, the district court did not abuse its discretion.
CONCLUSION
The judgment of the district court is affirmed.
Affirmed.
. In the parties’ briefs as well as at oral argument, there appeared to be some question as to the applicability of Illinois Supreme Court Rule 220, which is the state court rule on expert testimony and is worded identically to Federal Rule of Civil Procedure 26(b)(4)(A). However, when there is a Federal Rule of Civil Procedure directly on point, which is not unconstitutional, a federal district court sitting in diversity must apply the federal procedural rule, rather than a conflicting state rule. Hanna v. Plummer, 380 U.S. 460, 473-74, 85 S.Ct. 1136, 1145, 14 L.Ed.2d 8 (1965).
. Cf. Nelco Corp. v. Slater Elec., Inc., 80 F.R.D. 411, 414 (E.D.N.Y.1978) (”[I]t is ... apparent that these provisions are not applicable to discovery requests directed at information acquired or developed by the deponent as an actor in transactions which concern this lawsuit.”) (emphasis in original); Quarantillo v. Consolidated Rail Corp., 106 F.R.D. 435, 437 (W.D.N.Y.1985) ("Rule 26(b)(4) sets forth restrictions upon discovery of facts known and opinions held by experts that had been acquired or had been developed in anticipation of litigation or for trial.") (emphasis in original).
.Under Illinois case law, the Patels might have a stronger argument that the doctors did not have to be identified. See O’Brien v. Meyer, 196 Ill.App.3d 457, 143 Ill.Dec. 322, 324, 554 N.E.2d 257, 259 (1989) (treating physicians need not be disclosed as experts under Rule 220); Dugan v. Weber, 175 Ill.App.3d 1088, 125 Ill.Dec. 598, 601, 530 N.E.2d 1007, 1010 (1988) (“The physician’s relationship to the case, not the substance of his testimony, qualifies him as a Rule 220 expert.’’). Although these cases seem to set down a blanket rule that a treating physician not retained to give an opinion at trial need not be disclosed, there is also language in O’Brien warning against trying to bring expert testimony in "through the back door.” 143 Ill.Dec. at 324, 554 N.E.2d at 259.
. Although not necessary to our decision, we note that Dr. Vyden, the Patels' expert cardiologist, did testify to the jury that it was his opinion that Dr. Gayes had not adhered to the general medical standard of care.
. The district court noted on the record that all of the Patels’ proposed instructions were actually rejected because they were not timely submitted. However, for the sake of completeness, we shall elaborate further because the Patels dispute the clarity of the instruction deadline. Tr. of Mar. 7, 1991 at 818, 822.
. See also Midcoast Aviation, Inc. v. General Elec. Credit Corp., 907 F.2d 732, 741-42 n. 7 (7th Cir.1990) ("With (jury] instructions, we don’t pick nits; we examine the whole of what was given and look for overall fairness and accuracy."); Goldman v. Fadell, 844 F.2d 1297, 1302 (7th Cir.1988) (inadequacy of jury instructions is only reversible error when “the jury’s comprehension of the issues is so misguided that a litigant is prejudiced”) (citations omitted).
. Dr. Gayes testified that he relied upon the study to estimate the chance of Ben Patel having a heart attack, given the other coronary risk factors that he had. Additionally, he relied upon the study as the basis for his opinion that he had not deviated from the appropriate standard of care.
.Dr. Vyden testified that Dr. Gayes deviated from accepted standards of care in not hospitalizing Mr. Patel immediately. Specifically, Dr. Vyden stated that "not to have hospitalized the patient, not to have immediately ordered followup tests is in a word outrageous.” Tr. of Mar. 7, 1991 at 442-43.
. The jury was instructed separately on the issue of liability in terms of negligence. Tr. of Mar. 11, 1991 at 892-93.
. Federal Rule of Civil Procedure 61 governs when a mistake made at trial is harmless error:
The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Fed.R.Civ.P. 61.
. See, e.g., Stephens v. Inland Tugs Co., 44 Ill.App.3d 485, 3 Ill.Dec. 157, 358 N.E.2d 324 (1976) (experts may properly be asked hypothetical questions even though not all material facts of trial are included); Morris v. Stewart, 4 Ill. App.3d 322, 280 N.E.2d 746, 753 (1972) (hypothetical questions posed to an expert are not improper merely because they include only some of the facts in evidence).
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_3_3
|
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 concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
Bennie WILLIAMS, Appellant, v. David M. HERITAGE, Warden, U. S. Penitentiary, Atlanta, Georgia, Appellee.
No. 20328.
United States Court oí Appeals Fifth Circuit.
Oct. 18, 1963.
Allen L. Chancey, Jr., Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., Robert D. Feagin, III, Asst. U. S. Atty., for appellee.
Before CAMERON and WISDOM, Circuit Judges, and DeVANE, District Judge.
CAMERON, Circuit Judge.
This is an appeal from a dismissal of a petition for habeas corpus. The court below denied relief upon its finding of lack of jurisdiction to inquire into the conviction and sentencing of appellant by a General Court-Martial, and that appellant had failed to exhaust remedies available under the Uniform Code of Military Justice.
Appellant was convicted on October 18, 1960 by a General Court-Martial of the crime of murder and was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined to hard labor for life. Uniform Code of Military Justice, Art. 118, 10 U.S.C.A. § 918. The conviction was affirmed by the Board of Review, U.C.M.J. Art. 66, 10 U.S.C.A. § 866, but so much of the sentence that exceeded dishonorable discharge, forfeiture of pay and allowances, and confinement at hard labor for thirty years was remitted.
In November, 1962, appellant petitioned the District Court below, claiming that he was being held illegally because he had been incompetent to stand trial for the offense charged. He alleged that each of the three Army psychiatrists who examined him reached the conclusion that he was not competent, but that the court-martial “overrode" their findings and thus exceeded its “jurisdiction.”
The government does not deny that the three doctors advanced the opinion that appellant was incompetent, but argues that the question was one for the court-martial and that the civil courts have no power to review its findings and verdict. It is urged also, as found by the court below, that appellant has not exhausted military remedies available under Articles 67 and 78 of the Uniform Code of Military Justice.
We do not dispose of this appeal upon the claimed failure to exhaust military remedies. The relief available under Article 67 must be sought within "30 days from the time * * * of the decision of a board of review,” and that available under Article 73 “within one year after approval by the convening authority of a court-martial sentence * * *.” Inasmuch as these remedies are no longer available to appellant, it appears that the recently decided case of Fay v. Noia, 1963, 372 U.S. 391, 434-435, 83 S.Ct. 822, 9 L.Ed.2d 837, governs in principle and that prior failure to seek military review is no longer necessarily a bar to habeas corpus relief otherwise available.
With respect to the District Court’s dismissal for lack of power to inquire into the military proceedings, the latest word from the Supreme Court sustains the decision of the trial court, and even the prior short-lived more liberal view would not allow a contrary result.
In Fowler, the court re-emphasized the principle that civil courts have very limited jurisdiction with respect to inquiries into the results of military justice:
“As long ago as 1902 this Court recognized that it was a ‘salutary rule that the sentences of courts martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed.’ Carter v. McClaughry, 183 U.S. 365, 401, [22 S.Ct. 181, 46 L.Ed. 236].”
The only inquiry which a civil-court may make in a habeas corpus proceeding is whether the court-martial had jurisdiction over the person and over the subject matter of the offense. It is obvious that such jurisdiction was present in this case. The now restricted Burns intimation that the civilian courts have the power to test whether the military court “dealt fully and fairly with an allegation raised * * Burns, supra, at page 142 of 346 U.S., at page 1049 of 73 S.Ct., 97 L.Ed. 1508, would give no comfort here, for there is no showing or allegation whatever that the court-martial did not do so. Appellant claims only that the court-martial is bound by the opinions of the psychiatrists. That, we hold, is not the law. Failure to follow the advice of the experts is neither per se a denial of constitutional rights nor even error which may be corrected upon direct review, in either a military or civil case.
It must be remembered that “in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases.” Burns, supra, at 139 of 346 U.S., at 1047 of 73 S.Ct., 97 L.Ed. 1508. We cannot broaden it here. We are bound by what the Supreme Court has decided, not on what we may think is the trend of its decisions away from what it has actually decided.
Affirmed.
WISDOM, Circuit Judge.
I concur in the result.
. 10 U.S.C.A. § 867, Art. 67, Review by The Court of Military Appeals; 10 U.S. C.A. § 873, Art. 73, Petition for a new trial.
. Fowler v. Wilkinson, 1957, 353 U.S. 583, 77 S.Ct. 1035, 1 L.Ed.2d 1054. Cf. Jackson v. Taylor, Acting Warden, 1957, 353 U.S. 569, 77 S.Ct. 1027, 1 L.Ed.2d 1045.
. Burns v. Wilson, 1953, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508. But see, In re Yamashita, 1946, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499, and Hiatt v. Brown, 1950, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
George W. WALSH, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6780.
United States Court of Appeals First Circuit.
Jan. 25, 1967.
S. Roy Remar, Boston, Mass., by appointment of the Court, for appellant.
John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Defendant, under sentence for bank robbery, charges errors committed by the district court before and during trial. The alleged pre-trial errors were denials for defendant’s motions to inspect grand jury records, for a bill of particulars, and for copies of statements made by defendant to the police. Rulings on these motions were made prior to the July 1, 1966 amendments to rules 7 and 16 of the Federal Rules of Criminal Procedure, which were intended to liberalize discovery procedures in criminal cases. Even as amended these rules give no automatic right to a defendant. However appealing we might find the arguments for the defendant’s right to discovery in the abstract, it is plain that the district court was within its discretion in denying the motions here, especially under the rules in effect at the time of trial.
As to the request for grand jury records, defendant merely asked an opportunity to examine the records without specifying any reason or “particularized need”. Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. Although Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, granted relief in that case, it did so on the ground that such a showing was made. The motion for a bill of particulars sought evidence concerning the robbery, descriptions of participants and weapon, and statements. But the two-count indictment adequately described the crimes alleged, sufficiently to avoid any claim of surprise or double jeopardy. As to the motion for production of statements of defendant, it appears that there were no formal statements, only two conversations between defendant and an F.B.I. agent, which the agent had summarized in a report. This report was given defendant’s counsel at trial.
The assignment of errors allegedly committed during trial included refusal to order an informer’s identity revealed, comments made by the trial judge in connection with rulings, and intervening to assist a witness to identify defendant. As to the first, several photographs of defendant, used for identification purposes, had been obtained by the F.B.I. from a “reliable informer”. In 1963 defendant had placed them in an album in the home of his wife, where they apparently remained until he and his wife separated in 1965. Lacking any indication that defendant had any standing to object to any illegal search and seizure and that obtaining the photographs was tainted with any illegality, the court acted properly in refusing to compel identification of the informer. Cf. Roviaro v. United States, 1957, 353 U.S. 53, 60-61, 64, 77 S.Ct. 623, 1 L.Ed.2d 639.
The final error charged was that the district judge aided in the identification of defendant by directing the attention of a witness to defendant. The witness, nervous and wearing bifocal' glasses, spent several long minutes looking first at the jurors and then at the judge in his effort to identify the man who held him at gunpoint from a distance of two to two and one half feet. Finally the judge said, “Do you recognize the man at the bar sitting down there? Yes or no, now.” The witness answered “Yes”, then walked to a position close to defendant and said, “Yes, that’s him.”' The witness testified to his having earlier identified photographs of defendant and to his having identified defendant among eight or ten men, without prompting and in the absence of any officer, in a courtroom on another occasion. The hesitancy of the witness’s identification of defendant at trial was obviously apparent to the jury and was used by defense counsel in argument. Two other witnesses, each of whom was sequestered from the courtroom until she testified, made positive and unhesitating identification. This intervention by the trial judge was no more prejudicial, if as much so, than that in Panzich v. United States, 9 Cir., 1933, 65 F.2d 550, where, in the presence of prosecution witnesses, the court required defendants to step forward. We cannot say that the judge abused the wide latitude of discretion he must have in supervising the conduct of the trial. A reading of the entire record clearly reveals his continual efforts to be fair.
Affirmed.
. We pass the allegation that the judge made deprecating comments concerning defense counsel’s examination of a witness. The record reveals that the remark complained of was one of several directed to the prosecutor, intended to discourage time-wasting objections on unimportant points.
. The record does not reveal the lapse of time, or where the witness looked, but this was agreed to by both counsel in their oral argument.
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BRIGGS TRANSFER CO. et al. v. NATIONAL BUTTER CO. et al.
No. 14593.
United States Court of Appeals Eighth Circuit.
Nov. 11, 1952.
David Axelrod, Chicago, 111. (Jack Goodman, Carl L. Steiner, Chicago, 111., and Sidney S. Feinberg, Minneapolis, Minn., on the brief), for appellants.
Clyde F. Anderson, Minneapolis, Minn. (Meagher, Geer, Markham & Anderson, Minneapolis, Minn., on the brief), for appellees.
Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
This appeal is taken to reverse the judgment of dismissal with costs which was entered pursuant to the opinion of the District court, reported in Hildenbrand v. National Butter Co., 107 F.Supp. 890. There were nine certified common carriers by motor vehicle joined as parties plaintiff in the action and the object of it was to obtain injunctive relief against defendants who were not certified common or contract carriers but were alleged to be engaging in the transportation of property in interstate commerce by motor vehicle for compensation on public highways between Minneapolis and St. Paul and points in various eastern states in violation of Sections 206(a) and 209(a) of Part II of the Interstate Commerce Act, 49 U.S.C.A. §§ 306(a) and 309(a). It was not claimed that defendants were openly holding themselves out or admittedly operating as carriers for hire, but it was alleged that they were making arrangements for the leasing and use of their motor vehicles from which the violations resulted. Plaintiffs claimed that the conduct of defendants threatened irreparable injury to the plaintiffs’ business.
It appears from inspection of the complaint, and the court noted in its opinion, that several of the nine plaintiffs in the action “participated in and are parties to the leasing arrangements of which they complain and which they seek to enjoin” and the plaintiffs so referred to have not joined in this appeal.
It was not alleged in the complaint that the Interstate Commerce Commission had been applied to or that it has refused to consider or to act in respect to the matters set forth in the complaint. But in the uncontroverted affidavit filed by defendants in support of their motion to dismiss for want of jurisdiction, it was stated that the Interstate Commerce Commission has from time to time investigated the lease arrangements between the defendants 'and “is not taking any action against the defendants.”
It appeared to the trial court that the questions presented in the case were essentially fact questions involving primarily the exercise of administrative discretion and expertise. It considered that the controversy presented could best be dealt with in the first instance by the administrative procedure and means provided by the Interstate Commerce Act. It declined to take jurisdiction of the complaint for injunction for the reasons clearly stated in its published opinion supported by the cases cited. It referred the plaintiffs to their remedies before the Commission and dismissed the complaint for injunction at plaintiffs’ costs.
On this appeal it is contended for appellants, (1) that the trial court erred in failing to take jurisdiction of the case under the general provisions of 28 U.S.C.A. § 1337, and that the rule as to primary jurisdiction or exhaustion of administrative remedies did not justify the court in declining jurisdiction; and (2) that the court erred in refusing to take jurisdiction on the ground that the questions presented were essentially ones of -fact calling for administrative solution.
1. The trial court, in effect, held the administrative remedy provided by the statutes had not been exhausted in the case at bar. That administrative remedy is set out in Section 204(a) (6) of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 304 (a) (6), where it is provided: “It shall be the duty of the Commission * * *. To administer, execute, and enforce all provisions of this chapter, to make all necessary orders in-connection therewith, and to prescribe rules, regulations, and procedure for such administration”. Appellants contend that that administrative remedy does not limit the general jurisdiction of the District court and that the court should have taken jurisdiction.
In ruling that the nature of the controversy was such as to call for administrative action and not for resort to the extraordinary, discretionary remedy by injunction in the first instance, the trial court relied upon its own informed understanding of it and also upon parallel knowledge and experience reflected in the opinion of the District court of Alabama in the analogous case of Akers Motor Lines, Inc. v. Malone Freight Lines, Inc., 88 F.Supp. 654, which it cited and quoted from. Without repeating the opinion, we think the trial court has fully supported its decision declining to entertain the complaint for injunction on reason and authority.
2. In support of its other point argued, appellants state: “district courts have, almost without exception, taken jurisdiction of cases in which the factual questions involved were the same as the instant case and from which determinations were made concerning the illegality of the arrangements involved without requiring consideration of the facts by administrative agencies.”
But we think the cases referred to, I. C. C. v. F. & F. Truck Leasing Co., D.C., 78 F.Supp. 13; Georgia Truck System, Inc., v. I. C. C., 5 Cir., 123 F.2d 210; Bridge Auto Renting Corp. v. Pedrick, 2 Cir., 174 F.2d 733; I. C. C. v. Pickard, D.C., 42 F.Supp. 351; United States v. Steffke, D.C., 36 F.Supp. 257; I. C. C. v. Cheesebrough, D. C., 77 F.Supp. 441; I. C. C. v. Isner, D. C., 92 F.Supp. 582, 583; Texas & Pacific R. R. Co. v. Gulf C. & S. F. R. R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578; Detroit & M. Ry. Co. v. Boyne City, G. & A. R. Co., D.C., 286 F. 540, are distinguishable from the case at bar. In the majority of them, the Interstate Commerce Commission itself was a party, and the wording of the statute, Section 222(b) of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 322 (b), is “the Commission or its duly authorized agent may apply to the district court * * * for the enforcement of such provision of this chapter * * *
Others of the cases turn on procedures under different statutes, e. g., taxing statutes or criminal statutes. Still others involve actions between railroad carriers, and as to such carriers the terms of the applicable statute, 49 U.S.C.A. § 1(20) provide that certain violations “may be enjoined * * * at the suit of the United States, the commission, * * * or any party in interest”. There is no comparable provision in 49 U.S.C.A. § 322(b) for suit by “any party in interest”, but only for injunction suit by “the Commission or its duly authorized agent”.
In the recent case of Empire Box Corp. v. Willard Sulzberger Motor Co., D.C., 104 F.Supp. 762, there was a vehicle-leasing contract between two private parties and it was determined that the contract violated the provisions of the Interstate Commerce Act. But the injunctive relief that was awarded in that action was awarded to the Interstate Commerce Commission which became a party to the action. The court, after having found the contract illegal, stated at page 767 of 104 F.Supp.: “The evidence in this case is sufficient to entitle the Commission to injunctive relief * * (Emphasis supplied.) The case lends no support to the private parties who sought injunction on their own account and without regard to the Commission in this case.
The trial court declined “to exercise jurisdiction here * * * because the questions presented are essentially ones of fact and involve primarily the exercise of administrative discretion and expertise”'. We have been directed to no precedent or statute declaring that that decision of the trial court is erroneous in such a case as this. Although somewhat similar cases have been before the courts, as shown in the cases cited by appellants, in situations where the courts have been required by the statutes to take jurisdiction (e. g. where the Interstate Commerce Commission itself was a party), nevertheless where intricate, practical, factual considerations in the involved field of motor transportation are concerned, the courts, in effectuating the National Transportation Policy, are entitled to have the benefit of prior consideration of the matters by the administrative agency established for that purpose. The trial court properly held that factual questions are present in this controversy and that those factual questions should first be brought before the Interstate Commerce Commission before resort to the courts.
The matter involved here is the use of public highways for motor transport of goods over a vast area. There can be no doubt that the intention of Congress is to cause a regulation of such use of the highways through the agency of the Interstate Commerce Commission. Only by enactment and application of nation-wide, uniform regulations, issuing from an expert and informed body, and by other appropriate action of the Commission, does Congress expect to achieve its aim of protecting the public interest in our highway and transportation system. Piecemeal injunction suits in the various district courts by interested parties and against particular, selected defendants will not suffice. It is the evident intention of Congress to leave such-cases as the one at bar to be dealt with in the first instance by the administrative procedure and machinery that the Congress has set up in the Interstate Commerce Act.
We find no error in the judgment of dismissal entered by the trial court and it is in all respects affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
PEDEN v. FLEMING, Superintendent of D. C. Workhouse.
No. 9013.
United States Court of Appeals District of Columbia.
Argued Dec. 10, 1945.
Decided March 4, 1946.
Mr. John R. Wall, of Washington, D. C., with whom Mr. Roger Robb, of Washington, D. C., was on the brief (both appointed by the District Court), for appellant.
Mr. John P. Burke, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee. Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.
Before GRONER, Chief Justice, and EDGERTON and WILBUR K. MILLER, Associate Justices.
WILBUR K. MILLER, Associate Justice.
This appeal brings before us for review an order of the District Court of the United States for the District of Columbia dismissing the appellant’s petition for a writ of habeas corpus.
On August 12, 1942, the appellant, having been convicted in the Municipal Court of the District of Columbia, Criminal Division, in eleven cases involving violations of the Uniform Narcotic Drug Act, § 33— 420 of the District of Columbia Code (1940), was sentenced to serve 1,980 days. He was committed to an institution of the United States Public Health Service, located at Lexington, Kentucky, which has facilities for the treatment of narcotic addicts. After imposing the sentences, the court directed that its then current term be kept open.
In the year 1943, the institution reported to the court that the appellant’s apparent cure could best be tested by releasing him. Pursuant to this suggestion, the committing court had appellant brought before it and on September 3, 1943, placed him on probation subject to supervision until the expiration of the sentences.
Events soon demonstrated that the apparent cure was not real. Appellant was. arrested for breaking and entering a drug store and stealing nembutol. He was held to await the action of the grand jtfry, but meanwhile he was taken by the probation officer before a Municipal Court judge, to whom he confessed the drug store breaking and admitted the continued use of nem-butol while on probation. The Municipal Court revoked the order of probation and directed that the appellant be committed to serve 1,592 days remaining from the original sentences. Afterwards, on his plea of guilty, he was given six months for petit larceny under the indictment charging the drug store offense, to run concurrently with the sentences for the narcotic offenses.
In his argument here, the appellant contends that the Municipal Court’s action in placing him on probation was void because he had already been committed. But he asserts that the court had authority to reduce his sentences and, as the order of probation released him from custody, he reasons that it should be construed as an unconditional reduction of the sentences. The appellant also argues that, assuming he was properly placed on probation, the order revoking probation was void because he was denied the assistance of counsel at the hearing following which that order was entered.
We agree with the appellant’s argument that the Municipal Court did not have power to enter a probation order after he had been committed. The District of Columbia Probation Act, D.C.Code, Title 24, § 102, provides that probation may be granted after the imposition of a sentence “but before commitment.” The Supreme Court has held that, even in th.e absence of a specific statutory limitation upon its power, a court may not grant probation after commitment.
The appellant contends that the Municipal Court had the power to reduce his sentences during the term at which they were imposed, and aptly cites United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354. We agree. But we cannot follow the next step in his argument, which is “since the effect of its order was to reduce his sentence to the time already served, the court’s order should be sustained as an unconditional order reducing the sentence.” In the first place, the order placing the appellant on probation (which he seeks to have interpreted as a reduction of the sentences) was not made at the term of the Municipal Court at which the sentences were imposed. It is true that the court ordered that the term remain open, but we think the order did not have the effect of prolonging the term from August 3, 1942, when the sentences were imposed, until September 3, 1943, when probation was ordered. The Code provides, Title 11, § 609, that the Municipal Court “shall hold a term on the first Monday of every month, and continue the same from, day to day as long as it may be necessary for the transaction of its business.”
In Harris v. Nixon, 27 App.D.C. 94, this court observed that the statute limits the term of the Police (part predecessor to the present Municipal) Court to one month and empowers the court to continue the term from day to day. The opinion added: “The expression ‘from day to day’ suggests that it was not contemplated that the continued term would extend beyond the period of the next term of the police court. It is at least doubtful whether the statute intends that a term of court whose duration is one month may be continued from month to month, and, as in this case, whether the January term should he continued until the November term.” Witlv out intending to be understood as enlarging the comment on the statute expressed in Harris v. Nixon, we hold that in this case the Municipal Court could not extend the August, 1942, term until September 3, 1943. Hence, the court could not at that time reduce the sentences imposed more than a year before.
In the second place, the effect of a probation order is not to reduce the sentence to the time already served. While on probation, the prisoner continues to be, in a sense, in custodia legis, and, by the terms of the order in this case, the sentence continues to run. Instead of being reduced, the sentence is, through the grace of the statute, merely in a state of suspended animation, assuming probation to have been properly granted. But, as the order of probation was void, it had no legal effect. The release of the appellant was premature and it was the duty of the court to cause him to be recommitted. The argument that the void order of probation amounted to an unconditional reduction of sentence seems to us to be without merit.
Having reached the conclusion that probation was not properly granted, it is unnecessary to discuss the appellant’s contention that he was not accorded a fair hearing at the time the probation was revoked. The judgment of the District Court is affirmed.
Affirmed.
United States v. Murray, 275 U.S . 347, 48 S.Ct. 146, 72 L.Ed. 309.
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_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".
CHICAGO & W. I. R. CO. v. CHICAGO & E. R. CO (two cases). GRAND TRUNK WESTERN R. CO. v. CHICAGO & W. I. R. CO. et al. PETTIBONE et al. v. CHICAGO & W. I. R. CO. et al.
Nos. 7875-7877.
Circuit Court of Appeals, Seventh Circuit.
March 17, 1943.
Rehearing Denied Jan. 21, 1944.
See 140 F.2d 130.
John C. Slade, Frank H. Towner, and Bryce L. Hamilton, all of Chicago, 111., and H. V. Spike, of Detroit, Mich., for Grand Trunk Western R. Co.
Elmer W. Freytag, of Chicago, 111., for receivers of Wabash Ry. Co.
K. L. Richmond, Arthur M. Cox, and Frederic H. Stafford, all of Chicago, 111. (A. F. Reichmann and Andrew J. Dallstream, both of Chicago, 111., of counsel),, for Chicago & Eastern 111. R. Co.
J. R. Barse, Ernest S. Ballard, and Francis H. Uriell, all of Chicago, 111., for Chicago & Western Indiana R. Co.
Clyde E. Shorey, Robt. W. Schupp, and Frederic Barth, all of Chicago, 111., for Chicago & Erie R. Co.
Cope J. Hanley, and B. G. Stackhouse, both of Chicago, 111., for Trustees of Chicago, I. & L. Ry. Co.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
EVANS, Circuit Judge.
These four appeals were consolidated for presentation. They raise somewhat similar questions. Three, Nos. 7875-7, may be disposed of in one opinion. The appeal in No. 7878 must be separately considered and will be treated in a separate opinion. Chicago & Erie R. Co. v. Chicago & Western Indiana R. Co., 140 F.2d 126.
Generally speaking, all the appeals involve the distribution of the obligations and the maintenance and operating expenses of the Chicago and Western Indiana Railroad Company, herein called the Western Indiana, which was organized in 1879, to provide terminal facilities for use by such railroads as might become its lessees. Western Indiana holds the legal title to what is known as the old part of the Dearborn Street passenger station, and general facilities, with the land, and approximately 25 miles of first or main-line railroad tracks and other tracks called second, as well as other property.
It entered into 999 year leases with five lessees: (1) Chicago and Erie Railroad Company, here called the Erie, appellant in No. 7878; (2) The Grand Trunk Western Railroad Company, here called the Grand Trunk, appellant in No. 7875; (3) The Chicago, Indianapolis and Louisville Railway Company, here called the Monon, appellant in No. 7876; (4) The Chicago and Eastern Illinois Railroad, herein called the Eastern Illinois, and (5) The Wabash Railway Company; hereinafter called the Wabash. The two last-named lessees are the real adversary parties to appellants in Nos. 7875 and 7876. The other lessees oppose Erie in its contentions in No. 7878.
Western Indiana is appellant in appeal No. 7877. It seeks instruction and guidance in making its future rental charges.
The litigation started as a so-called friendly suit, brought by Western Indiana, against Erie, to recover what Western Indiana alleges, and Erie denies, is rental due as Erie’s unpaid, proportionate share of certain costs and expenses incurred by Western Indiana during the period, April 1, 1933, to December 31, 1938.
Allegedly due on this amount was $114,-071.14. Erie denied all liability and filed a counterclaim, alleging that it had overpaid its share of the rentals and sought judgment for the amount of said overpayment, amounting to $126,852.72 on the so-called management issue and for $121,-804.97 on the disputed rental issue.
Erie also is a stockholder of plaintiff. It assails Western Indiana’s action in refusing to curtail certain suburban services which it is operating at a loss of $100,000 a year, after five of the six directors of plaintiff’s board voted in favor of curtailment.
Erie’s counterclaim against Western Indiana caused the latter to bring in the Grand Trunk, the Monon, the Eastern Illinois, and the Wabash, and ask the court to adjudge and declare the rights and liabilities of' all such parties with respect to Western Indiana’s operating and working expenses under the various leases to these parties. It also sought a declaratory judgment which would be its guide for distribution of its future rental charges. The new parties defendant deny liability. Grand Trunk and Monon each filed cross claims and counterclaims and asked for an accounting. All the bars were now down. The litigation provided a field day for all parties who entered their favorites, — dark horse grievances.
A further statement of the issues can best be understood if a short resumé of the Western Indiana’s history and activities is given. Organized in 1879, for the purpose of constructing a line of railway from Indiana State Line and also from Dolton, Illinois, into the City of Chicago, and there providing terminal facilities for use in common by Eastern Illinois and such other railroads as might become its lessees, the first stage of its construction was completed in 1880, since which time it has been the owner of a terminal in Chicago and two main lines of tracks between this terminal and the State Line near Hammond, Indiana, and the other at Dolton, Illinois. In addition to these two short main lines, Western Indiana owns “tracks, switches, turnouts, side tracks, yards, stations, appendages, and terminal facilities” comprising what is known as its “common property.”
Since 1880, additions and betterments to the common property in the way of improvements have been made. It has raised its tracks; it has also acquired what is known as the Belt Division and also various tracks, yards, and facilities not included in the “common property.”
Between October, 1879 and December, 1881, Western Indiana granted five, generally similar, leases, each for 999 years to the five above-named lessees, or their predecessors. The first lease was to Eastern Illinois. Each lease granted exclusive right to use certain described portions of the terminal property and also the right to use, in common with Western Indiana and such other company or companies as might obtain from Western Indiana the grant of similar rights, all the specified portions of the main tracks, passenger depot, and appurtenances.
The lease to Eastern Illinois gave it the exclusive right to conduct the entire local business between Chicago and Dolton. The lease to Erie gave Erie a similar right to the local business between Calumet River and Hammond, Indiana.
Each lease provided that each lessee should pay $5 per year, and such sum as would pay the interest upon the Western Indiana’s mortgage and provide sinking funds for the payment of the principal in 35 years from January 1, 1885. Said lease also provided for the lessee’s paying taxes and assessments, as well as all expenses of maintenance, management, and operation.
The different bases of rent payment are what has led to conflicts, disputes, and to litigation. Four times these disputes have reached this court. 131 F.2d 215; In re Chicago & E. I. R. Co., 94 F.2d 296; Chicago & W. I. R. Co. v. Chicago & E. I. R. Co., 86 F.2d 441; Grand Trunk W. R. Co. v. Chicago & E. I. R. Co., 141 F. 785.
Each time a different phase of the ever-hot and burning controversy was involved.
Rental payments were determined in one of two ways: either on the basis of use which was measured by the ratio of engine and car use of the property by one lessee to the total engine and car use of all five lessees. This was called the wheelage basis. The other rental called for payment by each lessee equally.
While the Western Indiana was originated as an independent venture, the stock of the company was soon acquired by the five lessee railways, each of which owned 20%. Such ownership has continued in the same ratio since 1882. About that same date an agreement was made, known as the 1882 Inter-Tenant Agreement, which provided that Western Indiana should exclusively manage and control all the property used by Western Indiana and its five lessees; should furnish at cost all facilities and perform all services required by it and as defined in the Inter-Tenant Agreement. Some expenses were to be distributed on the wheelage basis. Other expenses were to be borne equally by the owner-tenants. For exact coverage, read the provisions hereafter quoted.
The original bond issue was supplemented by a new bond issue when a new passenger station and additional track were constructed and numerous betterments were made which resulted in a new agreement executed in 1902, the terms of which and their effect on the 1882 Inter-Tenant Agreement are of large, if not determinative, importance in the disposition of these appeals. A new consolidated mortgage for $50,000,000 was negotiated. The five lessees executed an agreement which provided for the issuance of the mortgage and bond issue and “for the execution of new contracts of leasing,” all to be embodied in one document. The joint supplemental lease bore date, July 1, 1902, and carried into effect this preliminary agreement of the tenants. It provided for the refunding of the bond issue, the payment of rentals, and other matters of no particular importance in this case.
One paragraph of large importance is No. 33. It is set forth in the margin. Beneath it is paragraph 6 of the Inter-Tenant Agreement of 1882. These two afford the piece de resistance of this suit.
Since 1902, additional bonds have been issued and the lessees have, through additional leases, obligated themselves to pay additional rental, that interest and principal on the bonds may be always paid.
The property of Western Indiana is used in part by other railroads. At the present time they are three in number, — the Belt Railroad, the Atchison, Topeka and Santa Fe Railway Co., and the Elgin, Joliet and Eastern Railway Company. It has also rented properties, nine parcels, paying therefor, $90,084.25 per year.
The business of the five-owner-lessees developed somewhat differently, and the rental payments on the wheelage basis began to vary. As a result, it became a matter of advantage to one tenant to pay its rental on the wheelage basis, while to another, an advantage lay in payment on an equal basis.
A by-law of Western Indiana provided:
“A. In the management and control of the railroad and property of the Company which is used in common by the present five railway company lessees thereof, * * * and in the establishment and enforcement of rules and regulations for the use of said railroad property, it shall be necessary to secure the unanimous approval of said railway company lessees.”
Various efforts to effect a compromise were defeated by the spokesmen of one or more tenants. Auditors and Committees of Advisors made reports as to the correct method of determining whether an item fell within the wheelage proviso, but all reports came to naught for want of unanimous approval. The lessee or lessees who were benefited by the prevailing method of distributing expenses blocked all possible proposed settlements and attempted clarifications. The lessor was not consistent or uniform in its rulings. In one instance a substantial item was allocated first on a wheelage basis, then on an equal basis, then back to the wheelage basis.
The items which are involved in the appeal of Grand Trunk and Monon, are four in number: (1) disputed rentals; (2) the Grand Trunk payment; (3) Western Indiana’s separate railroad operations; (4) miscellaneous charges and expenses.
(1) The Western Indiana leased nine pieces of property and paid rental therefor. The largest rental item was $48,718.-72, paid annually to Santa Fe. For the remaining eight parcels, a rental of $41,-365.72 was paid to the five shareholder-lessees in different amounts.
(2) An annual payment of $20,665.35 by Western Indiana has been made to Grand Trunk since July 1, 1902, and was to continue until “Grand Trunk shall use lessor’s road south of 49th Street.” (Such use by Grand Trunk has not occurred.) This agreement and payment were the result of certain cancelled provisions in the 1891 lease to Grand Trunk.
(3) Lessor incurred expenses for two services — suburban passenger train service and freight switching. Both are conducted on the common property. The expenses have been heretofore paid out of lessor’s income. In other words, they have not been billed separately to and paid by the lessees.
(4) Charges and expenses for “Foreign Freight Cars- — -Per Diems, Reclaims, and Repairs; Illinois Franchise Tax; Federal Income Tax; Miscellaneous Taxes; Work Equipment — Insurance, Depreciation and Repairs; Expenses on Funded Debt; and Taxes on Surplus Property.”
The contested question in each case turns on the query, — How should these expenses be distributed, on a wlieelage basis, or equally ?
Preliminary questions which are advanced by opposing counsel must first be met.
Much weight is given by Grand Trunk and Monon to the decision of this court in a case (94 F.2d 296) brought to determine whether certain capital stock taxes should be distributed upon the wheel-age basis. Without discussion, we accept, not because of any doctrine of stare decisis, but rather because of the strength and merit back of the reasons and conclusions, that part of the opinion which holds that the lessees are not bound or estopped by their payments to the lessor nor is the lessor bound by its construction of the contract and method of distribution of expenses.
The venture of the lessor and lessees was quite similar to, if indeed it was not, a joint venture. The many items of expenses of the lessor necessitated prompt payments by the lessees. Adjustments could be, and were, made by both sides. None of the parties ever made their payments as a settlement of a stated account. In fact, the lessor occupied somewhat the position of a trustee. Grand Trunk Ry. Co. v. Chicago & W. Ind. R. Co., 7 Cir., 131 F.2d 215.
We are also convinced that if the Inter-Tenant Agreement of 1882 governs, the items here in dispute are chargeable to tenants on the usage or wheelage basis.
Supplementing the reasons given by the court in the capital stock tax case, we find much justice and persuasive reason back of such an allocation. When the five roads, which were to use these terminal facilities of Western Indiana, concluded to embark on this enterprise and to purchase the property, each contributed the same sum and each took 20% of its stock and each acquired a lease with the right to use the common property for a period of 999 years. Each was to pay a rental to cover the charges.
The difficult task of distributing the expenses and charges arose. It was to be done as rentals. Being equal owners, the parties might have provided for carrying the burden of all expenses, equally. Likewise, the burden could have been distributed among the owner-tenants on the basis of their use of the property. The parties adopted neither in whole and both in part. This not only would appear to be the fair way, but the parties so believed and settled the matter by their written agreement. This was in 1882.
As the five roads’ businesses increased and the Chicago terminal became more important and valuable, costly improvements and betterments were required. In twenty years this led to the flotation of a $50,000,000 mortgage and the execution of an agreement to give assurance of interest and refunding payments and to make the bonds sufficiently attractive to insure a low rate of interest.
The fundamental basis for distribution of Western Indiana’s costs, however, remained the same. The tenant was to pay in accordance with the extent of his use, save where the investment improvement and some similar items justly required the owners to pay according to their holdings in the company’s equity.
Concluding as we do that all four items, rental, Grand Trunk payments, Western Indiana’s separate railroad operation, and each miscellaneous charge and expense, would, under the agreement of 1882, be items for which the lessees should pay on a user or wheelage basis, we come to the seriously argued question in the case. It is the ground upon which appellees must rely in order to prevail, i. e., the cancellation (or abrogation) of the 1882 agreement by the 1902 agreement.
Appreciating the importance of this fact, the District Court met the question squarely and, by its 3rd conclusion of law, declared provision of paragraph 9 of the Preliminary Proprietary Agreement and paragraph 33 of the Joint Supplemental Lease of July 1, 1902, “superseded and abrogated paragraphs 5 and 6 of the Inter-Tenant Agreement of November 1, 1882,” and the various provisions in prior leases, etc. The District Court concluded that the Inter-Tenant Agreement of 1882 and the 999 year leases, so far as they provided for rental on a wheelage basis, were cancelled and the new agreement narrowed in scope the services for which rental on a use or wheelage basis was payable.
Grand Trunk and Monon contend that this is at variance with the decision of this court in the capital stock tax case. They also argue that this conclusion is in direct contradiction to the provision of paragraph 37 of the 1902 agreement, which reads:
“That nothing herein contained shall in any way alter, impair, or affect said existing leases, or any or either of them, or any matter or thing therein, except as herein otherwise specifically provided.”
It would have been easy for the parties to have expressly cancelled the rent provisions of the leases and particularly paragraphs five and six of the Inter-Tenant Agreement of 1882, if such were the agreement of the parties. Instead, however, the 1902 agreement, which appellees rely on as a cancellation of the 1882 agreement, expressly provides that the existing leases were in no way altered, impaired or affected, “except as. herein otherwise specifically provided.”
An agreement referred to by counsel and by the District Court, which preceded the execution of this 1902 agreement, was called the “Preliminary Proprietary Agreement.” It was executed, January 16, 1902, and obtained its name, Preliminary, because it was the forerunner, — -the basis — of the ultimate agreement into which it merged when the 1902 agreement was executed, July 1, 1902. It added nothing to the terms or the effect of said July 1, 1902 agreement. Consequently there is presented only the effect of the 1902 agreement on existing leases. The same question was before us in the capital stock tax case.
In view of the express provision above quoted, to the effect that no impairment, no alteration, and no effect of existing leases occurred by virtue of this, the 1902 agreement, “except as herein otherwise specifically provided,” we - must reject the contention that there was “a cancellation” or “an abrogation” of paragraphs 5 and 6 of the 1882 agreement by the July 1st, 1902 agreement.
This conclusion being inescapable, we must read and give effect to paragraph 33 to ascertain the extent that the existing leases were by it otherwise specifically superseded.
In describing the working expenses for which the parties were liable on a wheelage basis, paragraph 6 of the 1882 agreement provides:
“The term, ‘working expenses,’ as used in this agreement, shall include * * * all judgments against the Western Indiana Company and the expense of litigation, and all other claims and demands of every name, nature and description, for which the Western Indiana Company may be legally liable, excepting its mortgage debt and the interest thereon, and excepting therefrom, and from all the provisions of this paragraph, such claims and demands as, under tins agreement, or the leases and supplemental leases between the Western Indiana Company and the several parties of the second part, should be paid exclusively by one of the parties of the second part. * * * ” (Italics ours.)
This italicised provision does not appear in paragraph 33 of the 1902 agreement. Specifically, the question is, — Should we, in view of paragraph 37 (1902 agreement) heretofore quoted, which retained in full force and effect every provision of the existing leases (“or matter or thing therein”) not “herein otherwise specifically provided,” hold that this provision of paragraph 6 was cancelled? We had occasion to discuss the same subject in the capital stock tax case and concluded that this agreement, appearing in paragraph 6, remained intact after the 1902 agreement. We can not see how any different conclusion could have been reached. Paragraph 37 of the 1902 agreement expressly covers the situation. The quoted agreement appearing in paragraph 6 does not come within the exception of paragraph 37. It therefore clearly follows that the lessees are all bound by the above-quoted provision of section six and must pay the expenses, such as rent and other items which are the subject of this litigation, on a wheelage basis.
In disposing of this case we have given scant attention to the application of the doctrine of stare decisis. We have expressed our views on the effect to be given to the rules of stare decisis, “law of the case,” and res adjudícala in Luminous Co. v. Freeman Co., 7 Cir., 3 F.2d 577, 578 Counsel for appellants in Nos. 7875-6 have insisted that this case is governed by the decision of this court in In re Chicago & E. I. R. Co., 94 F.2d 296.
It is not to be understood that we are indifferent to the rule of stare decisis. In view of the earnest contention of the parties, their relations to each other, the evident desire of Western Indiana and at least some of the other lessees, to keep this large and important venture operating justly and fairly, we have felt it wise to reconsider the questions and, irrespective of the capital stock tax decision, reach an independent conclusion.
Our conclusion is that paragraph 37 of the 1902 agreement is express and explicit in its terms. That paragraph makes it impossible for us to conclude that the agreement of 1902 abrogated the previous existing agreements or rights of the lessees. On the other hand, that paragraph expressly sustained all existing contract rights not specifically changed. Among such rights was the lessees’ right to have certain expenses paid on the wheelage basis. Included within the terms of the provision which called for payment on wheelage basis was “any and all other claims and demands of every name, nature and description for which the Western Indiana Company may be legally liable.”
The decree of the District Court is reversed with directions to enter one in accordance with the conclusions expressed in this opinion. The Western Indiana should be granted a decree instructing it to allocate expenses in so far as the items here involved are concerned, among the lessees on a wheelage basis. The decree to be entered should provide that Western Indiana should restate its account charging some of the lessees with the difference between what they have paid and what they should pay on a wheelage basis, and crediting others with the difference between what they have paid on an equal basis, and what they should have paid on a wheelage basis. The decree will be subject to a further modification if there be any alteration or change in the method of apportioning expenses to be distributed on a wheelage basis if the appeal in No. 7878, Chicago & Erie Railroad Co. v. Chicago & Western Indiana R. Co., necessitates or directs a modification of existing methods.
“33. Operating Expenses Divided on Wheelage] Eleventh. That after the date hereof the lessor shall exclusively manage, operate and maintain every portion of the common property; and the entire cost of the management, operation, maintenance, repair and renewal of, and of all taxes, liens, water rents and assessments on, said railroad, buildings and facilities, the common use of which is reserved to the parties hereto, and the entire cost of the management, operation, maintenance, repair and renewal of, and all taxes, liens, water rents and assessments on, all enlargements and improvements thereof and additions thereto and on and to any other railroad hereafter acquired by the lessor for the common use of the parties hereto, shall he borne by said lessees in the proportion of their several wheelage uses of the various portions of said railroad to the total wheel-age use thereof; and for the purpose of distributing such cost, the lessor shall divide by lines across and at right angles with its right of way, its said railroad and property, including all appurtenances, into such sections as may be necessary in order to equitably distribute such cost of the management, operation, maintenance, repair and renewal of, and all taxes, liens, water rents and assessments on, said several sections among the parties of the second part in proportion to their respective wheelage uses of such sections; and it may, from time to time, change such sectional divisions the better to subserve the purpose and intent aforesaid.”
“6th. The term, ‘working expenses,’ as used in this agreement, shall include all taxes and assessments, ordinary and extraordinary, against the property of the Western Indiana Company, except that leased as aforesaid to the said Belt Railway Company, and property leased, or that may be leased, exclusively to one of the parties of the second part, or some other company or person; the cost of maintaining, repairing and renewing its railroad, tracks, buildings and other property, in the common use of the parties of the second part; the expense of providing and maintaining gates, signals, semaphores and lights, and of complying with any and all requirements that may be imposed by national, state or municipal authority; the expense of all service which the Western Indiana Company may have to employ; the cost of maintaining its corporate organization, and of protecting and defending its property, including suitable insurance thereof; all judgments against the Western Indiana Company and the expense of litigation, and all other claims and demands of every name, nature amd description, for which the Western Indiana Company may be legally liable, excepting its mortgage debt and the interest thereon, and excepting therefrom, and from all the provisions of this paragraph, such claims and demands as, under this agreement, or the leases and supplemental leases between the Western Indiana Company and the several parties of the second part, should be paid exclusively by one of the parties of the second part. The cost of permanent improvements and of additions to the Western Indiana Company property shall not be deemed to be included in the term ‘working expenses’ as used in this paragraph.” (Italics ours.)
For a telling statement of the reasons why we so conclude, see Judge Findley’s opinion in 94 F.2d 296.
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:
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sc_respondentstate
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51
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
JETT v. DALLAS INDEPENDENT SCHOOL DISTRICT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 87-2084.
Argued March 28, 1989
Decided June 22, 1989
Frank Gilstrap argued the cause for petitioner in No. 87-2084 and respondent in No. 87-214. With him on the briefs were Frank Hill and Shane Goetz.
Leonard J. SchwaHz argued the cause and filed a brief for respondent in No. 87-2084 and petitioner in No. 87-214.
Together with No. 88-214, Dallas Independent School District v. Jett, also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers and Eric Schnapper; and for the National Education Association by Michael H. Gottesman and Jeremiah A. Collins.
Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, Donald B. Ayer, Glen D. Nager, and Robert D. Sweeney, Jr., filed a brief for the International City Management Association et al. as amici curiae urging affirmance.
Justice O’Connor
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II, in which The Chief Justice, Justice White, and Justice Kennedy join.
The questions before us in these cases are whether 42 U. S. C. § 1981 provides an independent federal cause of action for damages against local governmental entities, and whether that cause of action is broader than the damages remedy available under 42 U. S. C. § 1983, such that a municipality may be held liable for its employees’ violations of § 1981 under a theory of respondeat superior.
I — I
Petitioner Norman Jett, a white male, was employed by respondent Dallas Independent School District (DISD) as a teacher, athletic director, and head football coach at South Oak Cliff High School (South Oak) until his reassignment to another DISD school in 1983. Petitioner was hired by the DISD in 1957, was assigned to assistant coaching duties at South Oak in 1962, and was promoted to athletic director and head football coach of South Oak in 1970. During petitioner’s lengthy tenure at South' Oak, the racial composition of the school changed from predominantly white to predominantly black. In 1975, the DISD assigned Dr. Fredrick Todd, a black, as principal of South Oak. Petitioner and Todd clashed repeatedly over school policies, and in particular over petitioner’s handling of the school’s football program. These conflicts came to a head following a November 19, 1982, football game between South Oak and the predominately white Plano High School. Todd objected to petitioner’s comparison of the South Oak team with professional teams before the match, and to the fact that petitioner entered the officials’ locker room after South Oak lost the game and told two black officials that he would never allow black officials to work another South Oak game. Todd also objected to petitioner’s statements, reported in a local newspaper, to the effect that the majority of South Oak players could not meet proposed National Collegiate Athletic Association academic requirements for collegiate athletes.
On March 15, 1983, Todd informed petitioner that he intended to recommend that petitioner be relieved of his duties as athletic director and head football coach at South Oak. On March 17, 1983, Todd sent a letter to John Kincaide, the director of athletics for DISD, recommending that petitioner be removed based on poor leadership and planning skills and petitioner’s comportment before and after the Plano game. Petitioner subsequently met with John Santillo, director of personnel for DISD, who suggested that petitioner should transfer schools because any remaining professional relationship with Principal Todd had been shattered. Petitioner then met with Linus Wright, the superintendent of the DISD. At this meeting, petitioner informed Superintendent Wright that he believed that Todd’s criticisms of his performance as head coach were unfounded and that in fact Todd was motivated by racial animus and wished to replace petitioner with a black head coach. Superintendent Wright suggested that the difficulties between Todd and petitioner might preclude petitioner from remaining in his coaching position at South Oak, but assured petitioner that another position in the DISD would be secured for him.
On March 25, 1983, Superintendent Wright met with Kin-caide, Santillo, Todd, and two other DISD officials to determine whether petitioner should remain at South Oak. After the meeting, Superintendent Wright officially affirmed Todd’s recommendation to remove petitioner from his duties as coach and athletic director at South Oak. Wright indicated that he felt compelled to follow the recommendation of the school principal. Soon after this meeting, petitioner was informed by Santillo that effective August 4, 1983, he was reassigned as a teacher at the DISD Business Magnet School, a position that did not include any coaching duties. Petitioner’s attendance and performance at the Business Magnet School were poor, and on May 5, 1983, Santillo wrote petitioner indicating that he was being placed on “unassigned personnel budget” and being reassigned to a temporary position in the DISD security department. Upon receiving Santillo’s letter, petitioner filed this lawsuit in the District Court for the Northern District of Texas. The DISD subsequently offered petitioner a position as a teacher and freshman football and track coach at Jefferson High School. Petitioner did not accept this assignment, and on August 19, 1983, he sent his formal letter of resignation to the DISD.
Petitioner brought this action against the DISD and Principal Todd in his personal and official capacities, under 42 U. S. C. §§ 1981 and 1983, alleging due process, First Amendment, and equal protection violations. Petitioner’s due process claim alleged that he had a constitutionally protected property interest in his coaching position at South Oak, of which he was deprived without due process of law. Petitioner’s First Amendment claim was based on the allegation that his removal and subsequent transfer were actions taken in retaliation for his statements to the press regarding the sports program at South Oak. His equal protection and § 1981 causes of action were based on the allegation that his removal from the athletic director and head coaching positions at South Oak was motivated by the fact that he was white, and that Principal Todd, and through him the DISD, were responsible for the racially discriminatory diminution in his employment status. Petitioner also claimed that his resignation was in fact the product of racial harassment and retaliation for the exercise of his First Amendment rights and thus amounted to a constructive discharge. These claims were tried to a jury, which found for petitioner on all counts. The jury awarded petitioner $650,000 against the DISD, $150,000 against Principal Todd and the DISD jointly and severally, and $50,000 in punitive damages against Todd in his personal capacity.
On motion for judgment notwithstanding the verdict, the defendants argued that liability against the DISD was improper because there was no showing that petitioner’s injuries were sustained pursuant to a policy or custom of the school district. App. to Pet. for Cert, in No. 87-2084, p. 46A. The District Court rejected this argument, finding that the DISD Board of Trustees had delegated final and unreviewable authority to Superintendent Wright to reassign personnel as he saw fit. Id., at 47A. In any event, the trial court found that petitioner’s claim of racial discrimination was cognizable under § 1981 as well as § 1983, and indicated that “liability is permitted on solely a basis of respondeat superior when the claim is one of racial discrimination under § 1981.” Ibid. The District Court set aside the punitive damages award against Principal Todd as unsupported by the evidence, found the damages award against the DISD excessive and ordered a remittitur of $200,000, but otherwise denied the defendants’ motions for judgment n.o.v. and a new trial and upheld the jury’s verdict in all respects. Id., at 62A-63A. Principal Todd has reached a settlement with petitioner and is no longer a party to this action. Id., at 82A-84A.
On appeal, the Court of Appeals for the Fifth Circuit reversed in part and remanded. 798 F. 2d 748 (1986). Initially, the court found that petitioner had no constitutionally protected property interest “in the intangible, noneconomic benefits of his assignment as coach.” Id., at 754. Since petitioner had received both his teacher’s and coach’s salary after his reassignment, the change in duties did not deprive him of any state law entitlement protected by the Due Process Clause. The Court of Appeals also set aside the jury’s finding that petitioner was constructively discharged from his teaching position within the DISD. The court found the evidence insufficient to sustain the claim that petitioner’s loss of coaching duties and subsequent offer of reassignment to a lesser coaching position were so humiliating or unpleasant that a reasonable employee would have felt compelled to resign. Id., at 754-756. While finding the question “very close,” the Court of Appeals concluded that there was sufficient evidence from which a reasonable jury could conclude that Principal Todd’s recommendation that petitioner be transferred from his coaching duties at South Oak was motivated by impermissible racial animus. The court noted that Todd had replaced petitioner with- a black coach, that there had been racial overtones in the tension between Todd and petitioner before the Plano game, and that Todd’s explanation of his unsatisfactory rating of petitioner was questionable and was not supported by the testimony of other DISD officials who spoke of petitioner’s performance in laudatory terms. Id., at 756-757. The court also affirmed the jury’s finding that Todd’s recommendation that petitioner be relieved of his coaching duties was motivated in substantial part by petitioner’s protected statements to the press concerning the academic standing of athletes at South Oak. These remarks addressed matters of public concern, and Todd admitted that they were a substantial consideration in his decision to recommend that petitioner be relieved of his coaching duties.
The Court of Appeals then turned to the DISD’s claim that there was insufficient evidence to support a finding of municipal liability under 42 U. S. C. § 1983. The Court of Appeals found that the District Court’s instructions as to the school district’s liability were deficient in two respects. First, the District Court’s instructions did not make clear that the school district could be held liable for the actions of Principal Todd or Superintendent Wright only if those officials were delegated policymaking authority by the school district or acted pursuant to a well settled custom that represented official policy. Second, even if Superintendent Wright could be considered a policymaker for purposes of the transfer of school district personnel, the jury made no finding that Superintendent Wright’s decision to transfer petitioner was either improperly motivated or consciously indifferent to the improper motivations of Principal Todd. Id., at 759-760.
The Court of Appeals also rejected the District Court’s conclusion that the DISD’s liability for Principal Todd’s actions could be predicated on a theory of respondeat superior under § 1981. The court noted that in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), this Court held that Congress did not intend municipalities to be subject to vicarious liability for the federal constitutional or statutory violations of their employees. The Court of Appeals reasoned that “[t]o impose such vicarious liability for only certain wrongs based on section 1981 apparently would contravene the congressional intent behind section 1983.” 798 F. 2d, at 762.
The Court of Appeals published a second opinion in rejecting petitioner’s suggestion for rehearing en banc in which the panel gave further explanation of its holding that respondeat superior liability against local governmental entities was unavailable under § 1981. 837 F. 2d 1244 (1988). The Court of Appeals noted that our decision in Monell rested in part on the conclusion that “ ‘creation of a federal law of respondeat superior would have raised all the constitutional problems’ ” associated with the Sherman amendment which was rejected by the framers of § 1983. 837 F. 2d, at 1247, quoting Monell, supra, at 693.
Because the Court of Appeals’ conclusion that local governmental bodies cannot be held liable under a theory of respondeat superior for their employees’ violations of the rights guaranteed by § 1981 conflicts with the decisions of other Courts of Appeals, see, e. g., Springer v. Seamen, 821 F. 2d 871, 880-881 (CA1 1987); Leonard v. Frankfort Electric and Water Plant Bd., 752 F. 2d 189, 194, n. 9 (CA6 1985) (dictum), we granted Norman Jett’s petition for certiorari in No. 87-2084. 488 U. S. 940 (1988). We also granted the DISD’s cross-petition for certiorari in No. 88-214, ibid., to clarify the application of our decisions in St. Louis v. Pra protnik, 485 U. S. 112 (1988) (plurality opinion), and Pembaur v. Cincinnati, 475 U. S. 469 (1986) (plurality opinion), to the school district’s potential liability for the discriminatory actions of Principal Todd.
We note that at no stage in the proceedings has the school district raised the contention that the substantive scope of the “right... to make... contracts” protected by §1981 does not reach the injury suffered by petitioner here. See Patterson v. McLean Credit Union, ante, at 176-177. Instead, the school district has argued that the limitations on municipal liability under §1983 are applicable to violations of the rights protected by § 1981. Because petitioner has obtained a jury verdict to the effect that Dr. Todd violated his rights under § 1981, and the school district has never contested the judgment below on the ground that § 1981 does not reach petitioner’s employment injury, we assume for purposes of these cases, without deciding, that petitioner’s rights under § 1981 have been violated by his removal and reassignment. See Canton v. Harris, 489 U. S. 378, 388-389, n. 8 (1989); United States v. Leon, 468 U. S. 897, 905 (1984). See also this Court’s Rule 21.1(a).
II
Title 42 U. S. C. § 1981, as amended, provides that:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac-tions of every kind, and no other.”
In essence, petitioner argues that in 1866 the 39th Congress intended to create a cause of action for damages against municipal actors and others who violated the rights now enumerated in § 1981. While petitioner concedes that the text of the 1866 Act itself is completely silent on this score, see Brief for Petitioner 26, petitioner contends that a civil remedy was nonetheless intended for the violation of the rights contained in § 1 of the 1866 Act. Petitioner argues that Congress wished to adopt the prevailing approach to municipal liability to effectuate this damages remedy, which was re-spondeat superior. Petitioner concludes that with this federal damages remedy in place in 1866, it was not the intent of the 42d Congress, which passed present day § 1983, to narrow the more sweeping remedy against local governments which Congress had created five years earlier. Since “repeals by implication are not favored,”'id., at 15 (citations omitted), petitioner concludes that § 1981 must provide an independent cause of action for racial discrimination against local governmental entities, and that this broader remedy is unaffected by the constraints on municipal liability announced in Monell. In the alternative, petitioner argues that even if § 1981 does not create an express cause of action for damages against local governmental entities, 42 U. S. C. § 1988 invites this Court to craft a remedy by looking to common law principles, which again point to a rule of respondeat superior. Brief for Petitioner 27-29. To examine these contentions, we must consider the text and history of both the Civil Rights Act of 1866 and the Civil Rights Act of 1871, the precursors of §§ 1981 and 1983 respectively.
Justice Brennan’s dissent errs in asserting that we have strayed from the question upon which we granted certiorari. See post, at 739-740. Jett’s petition for certiorari asks us to decide “[wjhether a public employee who claims job discrimination on the basis of race must show that the discrimination resulted from official ‘policy or custom’ in order to recover under 42 U. S. C. § 1981.” Pet. for Cert, in No. 87-2084, p. i. In answering this question, the lower court looked to the relationship between §§ 1981 and 1983, and refused to differentiate “between sections 1981 and 1983 with respect to municipal respondeat superior liability.” 837 F. 2d, at 1247. In both his petition for certiorari and his brief on the merits in this Court, petitioner Jett took issue with the Court of Appeals’ conclusion that the express damages remedy under § 1983 militated against the creation or implication of a broader damages remedy under § 1981. See Pet. for Cert, in No. 87-2084, pp. 14-16; Brief for Petitioner 14-25. Moreover, petitioner concedes that “private causes of action under Sections 1981 and 1982 do not arise from the express language of those statutes,” Brief for Petitioner 27, and asks this Court to “look to state law or to fashion a single federal rule,” of municipal damages liability under §1981. Id., at 28-29 (footnote omitted). We think it obvious that the question whether a federal damages remedy broader than that provided by § 1983 should be implied from § 1981 is fairly included in the question upon which we granted certiorari.
Equally implausible is Justice Brennan’s suggestion that we have somehow unwittingly answered this question in the past. See post, at 741. Most of the cases cited by the dissent involved private conduct, and thus quite obviously could not have considered the propriety of judicial implication of a federal damages remedy under § 1981 in the state action context we address here. The only two cases cited by Justice Brennan which involved state actors, Takahashi v. Fish and Game Comm’n, 334 U. S. 410 (1948), and Hurd v. Hodge, 334 U. S. 24 (1948), are completely inapposite. See post, at 745. Takahashi involved a mandamus action filed in state court, and thus understandably had nothing to say about federal damages remedies against state actors under § 1981. Hurd also involved only injunctive relief, and could not have considered the relationship of § 1981 to § 1983, since the latter statute did not apply to the District of Columbia at the time of our decision in that case. See District of Columbia v. Carter, 409 U. S. 418 (1973).
A
On December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had been ratified and become part of the Constitution. Less than three weeks later, Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, introduced S. 61, which was to become the Civil Rights Act of 1866. See Cong. Globe, 39th Cong., 1st Sess., 129 (1866). The bill had eight sections as introduced, the first three of which are relevant to our inquiry here. Section 1, as introduced to the Senate by Trumbull, provided:
“That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.” Id., at 474.
On January 29, 1866, Senator Trumbull took the floor to describe S. 61 to his colleagues. Trumbull indicated that “the first section will amount to nothing more than the declaration in the Constitution itself unless we have the machinery to carry it into effect.” Id., at 475. The Senator then alluded to the second section of the bill which provided:
“That any person who under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude,... or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.” Ibid.
Senator Trumbull told the Senate: “This is the valuable section of the bill so far as protecting the rights of freedmen is concerned.” Ibid. This section would allow for criminal prosecution of those who denied the freedman the rights protected by § 1, and Trumbull felt, in retrospect somewhat naively, that, “it will only be necessary to go into the late slave-holding States and subject to fine and imprisonment one or two in a State, and the most prominent ones I should hope at that, to break up this whole business.” Ibid.
Trumbull then described the third section of the bill, which, as later enacted, provided in pertinent part:
“That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever... such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the ‘Act relating to habeas corpus and regulating judicial proceedings in certain cases,’ approved March three, eighteen hundred and sixty three, and all acts amendatory thereof.” 14 Stat. 27.
Trumbull described this section as “giving to the courts of the United States jurisdiction over all persons committing offenses against the provisions of this act, and also over the cases of persons who are discriminated against by State laws or customs.” Cong. Globe, 39th Cong., 1st Sess., 475 (1866). Much of the debate in both the Senate and the House over the 1866 Act was taken up with the meaning of the terms “civil rights or immunities” contained in the first sentence of § 1 of the bill as introduced in the Senate. The phrase remained in the bill throughout the Senate’s consideration of S. 61, but was stricken by amendment in the House shortly before that body passed the bill.
Discussion of § 2 of the bill focused on both the propriety and constitutionality of subjecting state officers to criminal punishment for effectuating discriminatory state laws. Opponents of the bill consistently referred to criminal punishment and fines being levied against state judges and other state officers for the enforcement of state laws in conflict with § 1. See id,., at 475, 499, 500 (Sen. Cowan); id., at 598 (Sen. Davis); id., at 1121 (Rep. Rogers); id., at 1154 (Rep. El-dr idge). They never intimated that they understood any part of the bill to create a federal damages remedy against state officers or the political subdivisions of the States.
Debate concerning §3 focused on the right of removal of civil and criminal proceedings commenced in state court. Senator Howard, an opponent, engaged in a section by section criticism of the bill after its introduction by. Trumbull. As to § 3 he gave numerous examples of his perception of its operation. All of these involved removal of actions from state court, and none alluded to original federal jurisdiction except in the case of the exclusive criminal jurisdiction expressly provided for. Id., at 479 (“All such cases will be subject to be removed into the Federal courts”); see also id., at 598 (Sen. Davis) (“Section three provides that all suits brought in State courts that come within the purview of the previous sections may be removed into the Federal courts”). On February 2, 1866, the bill passed the Senate by a vote of 33 to 12 and was sent to the House. Id., at 606-607.
Representative Wilson of Iowa, Chairman of the House Judiciary Committee, introduced S. 61 in the House on March 1, 1866. Of § 1 of the bill, he said:
“Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment of civil rights and immunities merely affirms existing law. We are following the Constitution.... It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen.” Id., at 1117.
As did Trumbull in the Senate, Wilson immediately alluded to § 2, the criminal provision, as the main enforcement mechanism of the bill. “In order to accomplish this end, it is necessary to fortify the declaratory portions of this bill with sanctions as will render it effective.” Id., at 1118.
The only discussion of a civil remedy in the House debates surrounding the 1866 Act came in response to Representative Bingham’s proposal to send the bill back to the House Judiciary Committee with instructions “to strike out all parts of said bill which are penal and which authorize criminal proceedings, and in lieu thereof to give all citizens of the United States injured by denial or violation of any of the other rights secured or protected by said act, an action in the United States courts, with double costs in all cases of emergency, without regard to the amount of damages.” Id., at 1266, 1291. Bingham was opposed to the civil rights bill strictly on the grounds that it exceeded the constitutional power of the Federal Government. As to States “sustaining their full constitutional relation to the Government of the United States,” Bingham, along with several other Republicans, doubted the power of the Federal Government to interfere with the reserved powers of the States to define property and other rights. Id., at 1292. While Bingham realized that the same constitutional objections applied to his proposal for modification of the bill, he felt that these would make the bill “less oppressive, and therefore less objectionable.” Id., at 1291.
Representative Wilson responded to his Republican colleague’s proposal. Wilson pointed out that there was no difference in constitutional principle “between saying that the citizen shall be protected by the legislative power of the United States in his rights by civil remedy and declaring that he shall be protected by penal enactments against those who interfere with his rights.” Id., at 1295. Wilson did however see a difference in the effectiveness of the two remedies. He stated:
“This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty it is to protect him. The [Bingham] amendment... recognizes the principle involved, but it says that the citizen despoiled of his rights, instead of being properly protected by the Government, must press his own way through the courts and pay the bills attendant thereon.... The highest obligation which the Government owes to the citizen in return for the allegiance exacted of him is to secure him in the protection of his rights. Under the amendment of the gentleman the citizen can only receive that protection in the form of a few dollars in the way of damages, if he shall be so fortunate as to recover a verdict against a solvent wrongdoer. This is called protection. This is what we are asked to do in the way of enforcing the bill of rights. Dollars are weighed against the right of life, liberty and property.” Ibid.
Bingham’s proposal was thereafter defeated by a vote of 113 to 37. Id., at 1296. The Senate bill was subsequently carried in the House, after the removal of the “civil rights and immunities” language in § 1, and an amendment adding a ninth section to the bill providing for a final appeal to the Supreme Court in cases arising under the Act. Id., at 1366-1367. On March 15,1866, the Senate concurred in the House amendments without a record vote, see id., at 1413-1416, and the bill was sent to the President.
After holding the bill for a full 10 days, President Johnson vetoed the bill and returned it to the Senate with his objections. The President’s criticisms of §§ 2 and 3 of the bill, and Senator Trumbull’s responses thereto, are particularly illuminating. As to § 2, the President declared that it was designed to counteract discriminatory state legislation, “by imposing fine and imprisonment upon the legislators who may pass such... laws.” Id., at 1680. As to the third section, the President indicated that it would vest exclusive federal jurisdiction over all civil and criminal cases where the rights guaranteed in § 1 were affected. Ibid.
Trumbull took issue with both statements. As to the charge that §2 would result in the criminal prosecution of state legislators, Trumbull replied:
“Who is to be punished? Is the law to be punished? Are the men who make the law to be punished? Is that the language of the bill? Not at all. If any person, ‘under color of any law,’ shall subject another to the deprivation of a right to which he is entitled, he is to be punished. Who? The person who, under the color of the law, does the act, not the men who made the law. In some communities in the South a custom prevails by which different punishment is inflicted upon the blacks from that meted out to whites for the same offense. Does this section propose to punish the community where the custom prevails? Or is it to punish the person who, under color of the custom, deprives the party of his right? It is a manifest perversion of the meaning of the section to assert anything else.” Id., at 1758.
Trumbull also answered the President’s charge that the third section of the bill created original federal jurisdiction in all cases where a freedman was involved in a state court proceeding. He stated:
“So in reference to this third section, the jurisdiction is given to the Federal courts of a case affecting the person that is discriminated against. Now, he is not necessarily discriminated against, because there may be a custom in the community discriminating against him, nor because a Legislature may have passed a statute discriminating against him; that statute is of no validity if it comes in conflict with a statute of the United States; and it is not to be presumed that any judge of a State court would hold that a statute of a State discriminating against a person on account of color was valid when there was a statute of the United States with which it was in direct conflict, and the case would not therefore rise in which a party was discriminated against until it was tested, and then if the discrimination was held valid he would have a right- to remove it to a Federal court.” Id., at 1759.
Senator Trumbull then went on to indicate that “[i]f it be necessary in order to protect the freedman in his rights that he should have authority to go into the Federal courts in all cases where a custom [of discrimination] prevails in a State... I think we have the authority to confer that jurisdiction under the second clause of the constitutional amendment.” Ibid. Two days later, on April 6, 1866, the Senate overrode the President’s veto by a vote of 33 to 15. Id., at 1809. On April 9, 1866, the House received both the bill and the President’s veto message which were read on the floor. Id., at 1857-1860. The House then promptly overrode the President’s veto by a vote of 122 to 41, id., at 1861, and the Civil Rights Act of 1866 became law.
Several points relevant to our present inquiry emerge from the history surrounding the adoption of the Civil Rights Act of 1866. First, nowhere did the Act provide for an express damages remedy for violation of the provisions of § 1. See Jones v. Alfred H. Mayer Co., 392 U. S. 409, 414, n. 13 (1968) (noting “[t]hat 42 U. S. C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement”); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 238 (1969); Cannon v. University of Chicago, 441 U. S. 677, 690, n. 12 (1979); id., at 728 (White, J., dissenting). Second, no original federal jurisdiction was created by the 1866 Act which could support a federal damages remedy against state actors. See Allen v. McCurry, 449 U. S. 90, 99, n. 14 (1980) (§3 of the 1866 Act embodied remedy of “postjudgment removal for state-court defendants whose civil rights were threatened”); Georgia v. Rachel, 384 U. S. 780, 788-789 (1966); Strauder v. West Virginia, 100 U. S. 303, 311-312 (1880). Finally, the penal provision, the only provision explicitly directed at state officials, was, in Senator Trumbull’s words, designed to punish the “person who, under the color of the law, does the act,” not “the community where the custom prevails.” Cong. Globe, 39th Cong., 1st Sess., 1758 (1866).
Two events subsequent to the passage of the 1866 Act bear on the relationship between §§ 1981 and 1983. First, on June 13, 1866, just over two months after the passage of the 1866 Act, a joint resolution was passed sending the Fourteenth Amendment to the States for ratification. As we have noted in the past, the first section of the 1866 Act “constituted an initial blueprint of the Fourteenth Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 (1982). Many of the Members of the 39th Congress viewed § 1 of the Fourteenth Amendment as “constitutional-izing” and expanding the protections of the 1866 Act and viewed what became § 5 of the Amendment as laying to rest doubts shared by both sides of the aisle concerning the constitutionality of that measure. See, e. g., Cong. Globe, 39th Cong., 1st Sess., 2465 (1866) (Rep. Thayer) (“As I understand it, it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law”); id., at 2498 (Rep. Broomall); id., at 2459 (
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_usc1sect
|
1101
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES v. SILK.
No. 3214.
Circuit Court of Appeals, Tenth Circuit.
April 19, 1946.
Lester L. Gibson, of Washington, D. C. (Sewall Key, Acting Asst. Atty. Gen., J. Louis Monarch and John W. Fisher, Sp. Assts. to Atty. Gen., and Randolph Carpenter, U. S. Atty., and Lester Luther, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellant.
Ralph F. Glenn, of Topeka, Kan. (Oscar Raines, Wendell B. Garlinghouse, and Warren W. Shaw, all of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
This was an action brought under Titles VIII and IX of the Social Security Act, 42 U.S.C.A. §§ 1001 et seq., 1101 et seq., and Subchapters A and C of Chapter 9 of the Internal Revenue Code, 26 U.S. C.A. Int.Rev.Code, §§ 1400 et seq., 1600 et seq., for the recovery of employment taxes paid under protest. Plaintiff recovered, and the government has appealed. The only question presented by the appeal is whether the truck drivers and coal unloaders in question were employees of Albert Silk, doing business as Albert Silk Coal Company. The court’s findings of fact are supported by substantial evidence and are therefore binding upon us. The following is a synopsis of the court’s findings:
Appellee is a retail coal dealer in Topeka, Kansas, doing business as Albert Silk Coal Company. He has a large and extensive retail coal business. He does not own any trucks or any other vehicle used for the purpose of delivering the coal he sells. He contracts with individual owners of trucks for the delivery of coal at an agreed price per ton. The delivery trucks do not bear appellee’s name, telephone number, or any descriptive advertising matter relating to his business. He owns a parcel of land on which are located his coal bins and tracks where coal cars are spotted for unloading, and two office buildings between which is a driveway to the coal scales. Ap-pellee uses one of these buildings for his office and makes the other available as an assembly place for the truckers. The truckers have arranged a call list or board in the building in which they assemble, on which they enter their names in the order in which they are entitled to respond to a call for the delivery of coal. This was done by themselves for their own convenience. Appellee had nothing to do with the arrangement of the board. When a call comes into the office for coal, a ticket is made in duplicate, with all necessary data thereon. Appellee or his assistant then rings a bell which rings a bell in the building used by the truckers. The trucker whose name is at the top of the list on the board answers the bell and is offered the opportunity to make the delivery. If he desires to make the delivery he gets the order, but if for any reason he desires not to make the delivery, he so informs ap-pellee and rejects the order. He is under no duty to make the delivery. In that case, the man next on the board is entitled to make the delivery if he so desires. After a delivery is made, a trucker is free to go home or return to the yard for other deliveries as he desires. According to the testimony appellee exercises no control over the truckers. They come and go as they please; they are not formally hired or discharged; they are paid for whatever coal they deliver. They are paid for what they haul as they request, sometimes after each load, sometimes at the end of the day, and sometimes at the end of the week. Frequently they haul coal for other dealers, haul grain, foodstuff, furniture, wood, rock, or any other material for other merchants or for private citizens of the community. This is done without interference or control by appellee over them in any way. The truckers report for work at such hours as they may wish, leave when they wish, and come and go independently of any rules or regulations or contracts with appellee. If they do not want to haul coal, they do not report, or if they want to absent themselves for a week or two and then return, they do so. This in substance presents the relationship between appellee and the truckers.
In addition to the truckers, the status of another class of workers, the unloaders, is involved in the appeal. The unloaders are men who come to appellee’s coal yard and unload coal from cars into the bins. If when they come there is coal to unload they are assigned a car and the bin into which they are to put the coal. They furnish their own tools and are paid an agreed price per ton. They are not regular employees. They come and go as they please. They likewise work for others at times, without the knowledge or consent of ap-pellee. The only direction given to the unloaders is as to the car assigned to them and the bin into which they are required to put the coal.
In order for the government to prevail, the trial court’s findings of fact must compel the legal conclusion that the workers in question are employees within the purview of the Act. The Act in question is remedial in its scope and should be liberally construed to effectuate its remedial objectives. It may be conceded that the strict common law concept of employer and employee relationship is not the test for determining such relationship when it comes into question under the remedial provisions of the Act. In a sense, anyone who is engaged to do work for another for wages is an employee. He is employed to do work. But, in the same sense, an independent contractor likewise is employed or hired to do work. Article 205 of Regulation 90, promulgated under Title IX of the Social Security Act, defines employer and employee relationship as follows:
“However, the relationship between the individual who performs such services and the person for whom such services are rendered must, as to those services, be the legal relationship of employer and employee. * * * Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed. It is sufficient if he has the right to do so.”
Regulation 91 of the Social Security Act, issued by the Bureau of Internal Revenue in 1936, and which was in effect during the time involved herein, contains substantially the same provisions relating to the employer and employee relationship as those contained in Regulation 90.
In Jones v. Goodson, 10 Cir., 121 F.2d 176, 179, we said that:
“In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor.”
We also said that only a “reasonable measure of direction and control over method and means of performing the service is a constituent element of the relationship of master and servant.”
The relationship between appellee and the haulers and unloaders fails to measure up to any of the standards laid down in the Act, the regulations promulgated thereunder, or in our interpretation thereof in Jones v. Goodson, supra, and United States of America v. Wholesale Oil Co., Inc., 10 Cir., 154 F.2d 745. In a legal sense, there is no employment. In effect, all these laborers are itinerant workers. They come to work if, when, and where they please, and quit in like manner. They may work for one coal dealer today and report at another coal yard tomorrow, or they may haul grain, furniture or any other commodity for any individual or firm. But even while they work for appellee they are not subject to his control as to the method or manner in which they are to do their work. The undisputed evidence is that the only supervision or control ever exercised or that could be exercised over the haulers was to give them the sales ticket if they were willing to take it, and let them deliver the coal. They were free to choose any route in going to or returning. They were not required even to take the coal for delivery.
We think that the relationship between appellee and the unloaders is not materially different from that between him and the haulers. In response to a question on cross examination, appellee did testify that the unloaders did what his superintendent at the coal yard told them to do, but when considered in the light of all his testimony, all that this answer meant was that they unloaded the car assigned to them into the designated bin. Immediately after he gave the above answer, he was asked: “Wasn’t he the yard foreman who directed them in their duties ?”, to which he replied: “Oh, I don’t think so. They were told what to unload, where to unload it. He supervised.”
The undisputed facts fail to establish such reasonable measure of direction and control over the method and means of performing the services performed by these workers as is necessary to establish a legal relationship of employer and employee between appellee and the workers in question.
The decision of the trial court is therefore affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
|
songer_casetyp1_7-3-2
|
K
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Candis O. RAY, trading as Candis O. Ray & Associates, Appellant, v. Senator William PROXMIRE et al.
No. 77-1522.
United States Court of Appeals, District of Columbia Circuit.
Argued March 23, 1978.
Decided July 31, 1978.
Certiorari Denied Oct. 30, 1978.
See 99 S.Ct. 326.
Appeal from the United States District Court for the District of Columbia.
(D.C. Civil Action No. 77-0259).
Bruce W. Haupt, Washington, D. C., for appellant.
Timothy A. Vanderver, Jr., Washington, D. C., with whom Donald A. Lofty, Washington, D. C., was on brief, for appellees.
Before WRIGHT, Chief Judge, and TAMM and ROBINSON, Circuit Judges.
PER CURIAM:
Appellant operates a tour and hospitality service catering to conventions and sightseeing groups in the District of Columbia. Appellee Ellen H. Proxmire is a central figure in a competing enterprise, Washington Whirl-Around, Inc., which in recent years has captured much of appellant’s business. Ms. Proxmire’s husband, the only other appellee, is the senior United States Senator from Wisconsin. Appellant brought suit in the District Court, contending that appellees had tortiously injured her through activities related to Whirl-Around. After a hearing, the suit was dismissed, with prejudice, on the ground that appellant’s complaint failed to state a claim upon which relief could be granted. Having closely studied the complaint, we find that, even given its broadest reading, it does not denote any legally actionable conduct. Consequently, we affirm.
I
One claim, implicating Senator Proxmire alone, must be dealt with in the context of the privilege constitutionally conferred upon Members of Congress. The complaint theorizes that the Senator libeled appellant and disparaged her business in a letter to Senator Cannon, Chairman of the Senate Select Committee on Standards and Conduct. The letter was in reply to an inquiry by Senator Cannon with regard to appellant’s charge that Senator Proxmire had arranged for Whirl-Around to make use of Senate rooms on its tours. The allegedly defamatory statement was that appellant’s business rivals “are obviously more competitive and more efficient than she is.”
Assuming, as we must in the context of a motion to dismiss, that appellant could prove all she avers, this facet of her suit cannot survive the Speech or Debate Clause. In responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate, and “[t]he claim of unworthy purpose does not destroy the privilege.” There is no indication that he disseminated his letter to anyone whose knowledge of its contents was not justified by legitimate legislative needs. Nor is there any suggestion that the statement objected to intimated anything not reasonably spurred by the subject of Senator Cannon’s inquiry.
II
There are two other assertions against Senator Proxmire. One, previously mentioned, is that he arranged for use of Senate rooms by Whirl-Around’s clientele; the other is that he voted favorably to positions supported by its existing or potential customers in order to further Whirl-Around’s interests. These allegations might raise a difficult question with respect to immunity under the Speech or Debate Clause, but one we need not reach since we conclude that in no event could either provide the basis for suit by appellant.
As to the first, appellant alludes to a Senate rule supposedly prohibiting such uses of the rooms and to the proposition that governmental facilities should not be used for private gain at public expense. For the second, appellant invokes the criminal statute forbidding senators from accepting favors in return for influence on their official performances. Neither of these considerations provides appellant with a private cause of action nor serves to define the Senator’s duty of care in a common-law-tort cause of action.
The Supreme Court has enunciated the criteria determining whether a statute affords an individual right of action:
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” . . . —that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Viewed in this framework, it is evident that the criminal statute in question safeguards the interests of the Nation, which might have a cause of action, but not those of appellant in her business pursuits. Nor does the legislative history of the statute suggest a purpose to create a private right of action. As the Court has held with respect to a quite similar statute, this legislation “is a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.” We agree with the District Court that appellant has no privately-enforceable right under this penal provision.
And assuming without deciding that an internal rule of the Senate could ever give rise to a private cause of action, we are satisfied that none is conferred by that' adverted to here. Obviously the purpose of such a rule is at minimum to administer Senate facilities, and at most, to regulate one aspect of its members’ conduct. In each respect, interpretation and application of the rule is a matter not for the courts, but for the Senate; and if the rule was designed to impose a higher standard than the law of torts exacts, it is for the Senate, not us, to so declare. What we can say is that if the rule denies visitation to customers of one commercial enterprise, it could hardly have been intended to thereby protect the commercial interests of another. While we are sympathetic to the argument that taxpayers’ money should not be spent on maintenance of publicly-owned property to enable private companies to turn a profit, a violation of the rule is not a predicate for a lawsuit.
The same considerations lead us inevitably to the conclusion that neither the statute nor the rule delimits duties on the Senator’s part that can be enforced through a traditional tort cause of action. As a tour-business-person, appellant is not “ ‘a member of the class to be protected’ ” by these directives. Nor were they “designed to prevent the sort of harm to the individual relying upon [them] which has in fact occurred.” Indeed, Senator Cannon’s committee apparently decided that the practice complained of involves no breach of the rules. The judicial function is not implicated at all, for only in the Senate forum can observance of the rule be compelled.
Ill
Perhaps appellant’s strongest claim is unfair competition. The major allegation under that rubric is that Ms. Proxmire has utilized in Whirl-Around’s business the prestige and contacts enjoyed by a senator’s wife, and resultantly has enabled Whirl-Around to gain competitive advantages over appellant. We think, however, that this theory of action shares the fate of the others.
In a society encouraging aggressive economic competition, this court has recognized that the tort of unfair competition is a somewhat anomalous creature. Its scope has therefore been limited to three categories: passing off one’s goods as those of another, engaging in activities designed solely to destroy a rival and using methods themselves independently illegal. The case at bar does not fall within the first classification, and the second is intercepted by appellant’s complaint itself. There appellant does not so much as hint that the challenged conduct has as its purpose simply an effort to demolish her business; rather, she concedes in effect that it was “undertaken ‘with the legitimate purpose of reasonably forwarding personal interest and developing trade.’ ” The substance of what is alleged is that Ms. Proxmire wanted to make a bigger profit by capturing every potential customer, and that she must have realized that in doing so appellant would suffer grievously. That is not the same thing as acting with the motive of annihilating appellant’s enterprise.
That leaves only the third category — unlawful competitive mechanisms — and the insuperable difficulty there is that simple use of one’s status in society is not itself illegal. Appellant states that Whirl-Around secured entry to the vice-presidential mansion, the west lawn of the Capitol, State Department entertaining rooms and various rooms in the Senate office buildings. Because appellant could not match these arrangements, Whirl-Around could advertise “special tours” to “places normally inaccessible to other groups.” In like fashion, appellant says, Whirl-Around’s popularity grew partly because it could offer the opportunity to meet wives of governmental officials and to see their private homes. The key to Whirl-Around’s success thus assertedly was appellees’ fame and ability to “open doors.”
A hallmark of our way of life is the belief that personal gain should flow from individual ability and effort — not merely from perceived rank. The judge’s function, however, is limited to redress of legally-cognizable wrongdoing, and financial success does not become unlawful simply because it is aided by prominence; nor could it be, without locking the famous out of the economy. Even with the most conscientious endeavor not to trade upon personal repute, many will still treat celebrities specially, and their spouses should not be exiled from the business world just because the marital relationship might lead others to grant unique opportunities. Nor does acceptance of those opportunities flaunt any known rule of law, though without the celebrity’s well-earned stature they might never have been made available. Moreover, however reprehensible it might be through political influence to use public property for private gain, that evil cannot provide a basis for this private damage suit.
IV
Appellant suggests that because she was formally without counsel until oral argument of this appeal, we must construe her complaint with great liberality. We agree wholeheartedly that courts must always heed their responsibility to afford pro se litigants “every fair opportunity to present their case[s].” We are mindful, too, as the Supreme Court has instructed, that no complaint may be dismissed for failure to state a claim unless, after patient scrutiny and a liberal reading in the plaintiff’s favor, “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Appellant’s complaint has received at least that level of care, both in the District Court and here. It was dismissed not because appellant appeared pro se but because none of the factual allegations or inferences possibly deducible therefrom made out a cause of action against either appellee. Were there any plausible sug-gestión that appellant could do so now with counsel, we would remand to the District Court to afford that opportunity. But with all facts material to appellant’s complaint ostensibly before us, we see no occasion for extending the life of this litigation. The interest of those who are sued in having the matters resolved quickly, when justified, must not give way completely to our desire •to protect those who sue without counsel. Appellant has no doubt suffered injury, but not injury actionable at law. The complaints registered in this litigation may be matters for the Senate, but certainly not for the courts. Agreeing, then, as we must, that no claim has been stated upon which relief could be granted, the judgment of the District Court is
Affirmed.
. See Fed.R.Civ.P. 12(b)(6).
. Appendix to Brief for Appellant (App.) (fourth unnumbered page).
. E. g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).
. U.S.Const. art. I, § 6, cl. 1. In so concluding, we do not intimate a view as to whether the statement in question could be deemed actionable under general principles of the law of defamation.
. See Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583, 602-603 (1972).
. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019, 1027 (1951).
. Compare Gravel v. United States, supra note 5, 408 U.S. at 625-626, 92 S.Ct. at 2627-2628, 33 L.Ed.2d at 602-603 and McSurely v. McClellan, 180 U.S.App.D.C. 101, 109, 553 F.2d 1277, 1285 (1976), cert. dismissed,-U.S.-, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978); see Doe v. McMillan, 185 U.S.App.D.C. 48, 566 F.2d 713 (1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 59 (1978), after remand from 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Hutchinson v. Proxmire, 579 F.2d 1027 (7th Cir. 1978).
. Closely related is an averment, which the Senator disputes, of a conflict of interest prohibiting him from voting on legislation that would benefit Whirl-Around’s clients. See also Transcript of District Court Hearing (Tr.) 5. Since that claim involves similar legislative behavior, and since the same factors counsel against the implication of a private cause of action, this theory is identically ill-fated.
. Compare Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491, 505-506 (1969) with United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507, 525-526 (1972).
. The text of the rule does not appear either in the record or in the parties’ briefs, and it is unclear whether Senate rules actually forbid such use or whether that is simply left to the discretion of individual senators. It is undisputed, however, that appellant has been unable to find a senator who would reserve a room for use of her groups.
Senator Proxmire stopped reserving rooms for such uses in late 1975, not because he thought it improper but because he felt he “should be above criticism.” App. (third unnumbered page). The Senator tells us that “[a]U [appellant] needs to do if she wishes to reserve a room for her customers to hear a Senator speak is to ask the Senator to reserve one. I know of no rule which would prevent that.” Id. (fourth unnumbered page). No one, of course, would see anything wrong with access by touring groups incidental to an audience of some sort with a senator when a room was not needed for Senate business. Certainly our Capitol is a stellar attraction, and visitation with Senate members an opportunity few would pass up. We may not, however, proceed at this state of the litigation on this version of the facts. See text supra at note 3.
. 18 U.S.C. § 201 (1976).
. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36 (1975), quoting Texas & P. Ry. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, 877 (1916) (emphasis in original) (citations omitted).
. See Continental Management, Inc. v. United States, 527 F.2d 613, 617, 208 Ct.Cl. 501 (1975).
. See Cort v. Ash, supra note 12, 422 U.S. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37.
. See id. at 82, 95 S.Ct. at 2090, 45 L.Ed.2d at 39.
. Id. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37.
. Marusa v. District of Columbia, 157 U.S. App.D.C. 348, 354, 484 F.2d 828, 834 (1973), quoting Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 389, 282 F.2d 943, 947 (1960); accord, Wyandotte Transp. Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407, 415-416 (1967), citing Restatement (Second) of Torts § 286.
. Peigh v. Baltimore & O. R. Co., 92 U.S.App. D.C. 198, 200, 204 F.2d 391, 393 (1953); Prosser, Torts § 36, at 197 (4th ed. 1971), citing DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 N.E. 764 (1932).
. At oral argument, appellant’s counsel for the first time suggested the possibility that appellant might have claims under the antitrust laws or for tortious interference with contract. We have parsed the complaint once again, but have not found any allegations that might adequately support such theories. As to tortious interference, the averment relied upon is merely that an organization that appellant thought she had as a firm client informed her that it had decided to employ the services of Whirl-Around. Without at least an inference that appellees knew of an existing contract between the organization and appellant and acted to induce a breach of that contract, tortious interference is not sufficiently raised. See Meyer v. Washington Times Co., 64 App.D.C. 218, 222, 76 F.2d 988, 992, cert. denied, 295 U.S. 734, 55 S.Ct. 646, 79 L.Ed. 1682 (1935). As to the antitrust laws, the only theory at all relevant would be monopolization, but the element of conduct necessary could be supplied only by the allegation of unfair competition. The complaint, as we discuss in text, see text accompanying notes 19-24 infra, does not allege facts adequate to state a cause of action in that regard.
. Scanweli Laboratories, Inc. v. Thomas, 172 U.S.App.D.C. 281, 289, 521 F.2d 941, 949 (1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
. Id.
. See, e. g., Complaint ¶ ¶ 1 & 6.
. Standard Oil Co. v. United States, 221 U.S. 1, 58, 31 S.Ct. 502, 515, 55 L.Ed. 619, 644 (1911), quoted in Scanweli Laboratories, Inc. v. Thomas, supra note 20, 172 U.S.App.D.C. at 289, 521 F.2d at 949.
. Complaint, Exhibit 3.
. At the hearing on appellees’ motion to dismiss, appellant stated that “I am representing myself. However, I have had legal assistance." Tr. 12. There is no reason to assume that an attorney actually helped appellant prepare her complaint but then decided not to appear formally in order to gain the tactical advantage of having the complaint tested only by the standard demanded of pro se pleadings.
. Mason v. BeLieu, 177 U.S.App.D.C. 68, 70, 543 F.2d 215, 217, cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976).
. See cases cited supra note 3.
. Conley v. Gibson, supra note 3, 355 U.S. at 45 46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.
. See, e. g., Tr. 7 & 13.
. Appellant argues that she was treated unfairly because, at the time of the hearing on the motion to dismiss she did not know the full implications of the phrase “dismissal with prej udice.” See text supra at note 1. Be that as it may, any error inhering in that circumstance is harmless since the District Court applied the proper standard to the motion to dismiss with prejudice, see notes 26-27 supra, and accompanying text and arrived at the correct result.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_state
|
14
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Jane M. HOUGH, Plaintiff-Appellant, Cross-Appellee, v. LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, and Maywood Park Racetrack Corporation, Defendants-Appellees, Cross-Appellants.
Nos. 88-1394, 88-1515.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 28, 1988.
Decided Feb. 1, 1989.
Brenda A. Szeja, Chicago, Ill., for plaintiff-appellant, cross-appellee.
Francis M. Pawlak, Burke, Wilson & Mcllvaine, Robert E. Fitzgerald, Jr., Chicago, Ill., for defendants-appellees, cross-appellants.
Before CUMMINGS and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
CUMMINGS, Circuit Judge.
Plaintiff Jane M. Hough appeals from the district court’s grant of defendants’ motions for summary judgment and denial of both plaintiffs’ motion to vacate. This cause of action involved claims of a breach of the duty of fair representation under § 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185, and violation of the collective bargaining agreement in force between plaintiffs’ employer, defendant Maywood Park Racetrack Corporation, and defendant Local 134, International Brotherhood of Electrical Workers (the “Union”).
The district court granted defendants’ motions for summary judgment on January 11, 1988, and judgment thereon was entered on January 12, 1988. Plaintiffs Hough and Gallagher filed a motion to vacate on February 17, 1988, which was denied on the same date. Although a motion to vacate pursuant to Federal Rule of Civil Procedure (“FRCP”) 60(b) does not toll the period for filing an appeal, plaintiff Hough nonetheless filed a notice of appeal on March 2, 1988, beyond the thirty-day appeal period allowed under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(1). Defendant Maywood subsequently filed a cross-appeal as to the denial of its attorneys’ fees and costs. Since plaintiff Hough has failed to file either a timely appeal from the grant of summary judgment pursuant to FRAP 4(a)(1) or a FRAP 4(a)(5) motion to extend the time for filing an appeal, we will review only the denial of the motion to vacate.
This case was originally filed in the district court on September 2, 1986, and assigned to Judge Getzendanner, but was transferred to Judge Hart on September 25, 1987, pursuant to an order of the district court’s Executive Committee. The Union and Maywood filed their motions for summary judgment on March 20, 1987, and April 6, 1987, respectively. Plaintiffs thereafter filed their response to those motions on June 4, 1987. The response contained: (1) an erroneously labeled “Local Rule 12(e)” statement of material facts; (2) a memorandum of law in support of the response; and (3) a counter-affidavit jointly executed by the plaintiffs containing fourteen exhibits, including two other affidavits. Defendants filed three separate motions to strike each of these three filings of plaintiffs. Defendants also filed a reply memorandum in support of their own motions for summary judgment on June 25, 1987. Defendants sought to strike plaintiffs’ above three filings on the following grounds: (1) the “Local Rule 12(e)” statement was argumentative and conclusory so that it failed to comply with Local Rule 12(f); (2) the memorandum of law exceeded the page limit of Local Rule 9(d); and (3) the joint counter-affidavit was argumentative and conclusory in violation of FRCP 56(e). By order of June 26, 1987, Judge Getzendanner ruled that defendants’ three motions to strike would be considered jointly with their motions for summary judgment.
In response to defendants’ motion to strike plaintiffs’ memorandum of law for exceeding the page limit permitted by Local Rule 9(d), plaintiffs filed a nunc pro tunc motion on July 9, 1987, seeking retroactive leave to file the over-sized memorandum of law. Judge Getzendanner granted plaintiffs’ nunc pro tunc motion on July 17, 1987, and had her minute clerk notify plaintiffs’ counsel by telephone the same day. Hough’s counsel, Brenda Szeja, alleges the following facts concerning that telephone conversation:
(a) On July 17, 1987, I received a telephone call from a person identifying herself as Judge Getzendanner’s Minute Clerk. She advised me that the Judge had allowed my nunc pro tunc motion and had ruled in Plaintiffs’ favor. I asked her, “Does that mean that our Affidavit is okay?” [Referring to (defendants’) pending Motion to Strike same, which the Judge had stated, in her Order of June 26, 1987, would be considered with the pending Motion for Summary Judgment], and she said, “Yes.”
A copy of the July 17, 1987, order, which was mailed to Hough’s counsel, stated:
Plaintiff’s motion for order nun cpro tucn [sic] June 4, 1987 for leave to file oversized brief is granted. Plaintiff [sic] given leave to file responses to pending motions.
R. item 55.
Hough's counsel contends that the telephone conversation with Judge Getzendan-ner’s minute clerk on July 17, 1987, led her to believe that the court had denied defendants’ motion to strike plaintiffs’ joint counter-affidavit. Since the minute clerk allegedly answered “yes” in response to Ms. Szeja’s inquiry as to whether the “affidavit” was “okay”, it is understandable how counsel became confused as to the status of plaintiffs’ counter-affidavit and defendants’ motion to strike it. Apparently neither party spoke in sufficiently exact terms to identify which of the several affidavits or other matters submitted by the plaintiffs each party had in mind during this conversation. It is likely that the minute clerk meant to say that the over-sized memorandum of law was “okay” since the judge had given plaintiffs leave to exceed the page limit by the above July 17th nunc pro tunc order.
As a result of her mistaken impression that defendants’ motion to strike the joint counter-affidavit was denied, plaintiffs’ counsel failed to submit a revised counter-affidavit which would conform with FRCP 56(e). After the case was transferred to Judge Hart, he held a status hearing on the case on November 13, 1987, and ruling on the defendants’ motions for summary judgment was set for January 12, 1988.
Consistent with Judge Getzendanner’s order of June 26, 1987, Judge Hart considered two of the defendants’ three motions to strike in conjunction with their motions for summary judgment. Despite the mislabeling of the “Local Rule 12(e)” statement and the absence of any citations to the record in support of the factual assertions, Judge Hart accepted plaintiffs’ Local Rule 12(e) statement as a Local Rule 12(f) statement. Plaintiffs’ joint counter-affidavit, however, was another matter. The counter-affidavit was executed by both plaintiffs despite the requirement contained in FRCP 56(e) that such statements be based on personal knowledge. Further, with the exception of two affidavits, none of the affidavits attached as exhibits to the joint counter-affidavit were properly verified or authenticated. Despite these procedural irregularities which were identified prior to Judge Hart’s January 12th ruling on defendants’ motion to strike the counter-affidavit, plaintiffs declined to provide an amended affidavit, contending that the counter-affidavit was acceptable, apparently relying on their counsel’s mistaken belief that defendants’ motion to strike it had been denied by Judge Getzendanner. Accordingly, Judge Hart granted defendants’ motion to strike the counter-affidavit as deficient for failing to conform with FRCP 56(e). Since plaintiffs’ counter-affidavit therefore could not be considered, defendants’ assertion of facts was taken as true for purposes of their motions for summary judgment which Judge Hart granted.
Contrary to plaintiff Hough’s contention, this Court may not indirectly review the grant of defendants’ motion for summary judgment through its review of the FRCP 60(b) motion to vacate. Such a motion raises for review only the propriety of the district court’s denial of relief and is not a substitute for an appeal from the summary judgment for defendants. Chrysler Credit Corp. v. Macino, 710 F.2d 863 (7th Cir.1983). Our review is limited to whether Judge Hart abused his discretion in denying plaintiffs’ motion to vacate the summary judgment based on Ms. Szeja’s misunderstanding of Judge Getzendanner’s July 17th nunc pro tunc order.
Although a court is slow to attribute the errors of counsel to its client, A.F. Dormeyer Co. v. M.J. Sales & Distributing Co., 461 F.2d 40 (7th Cir.1972), by the same token, a client must accept the decisions of its retained counsel. Link v. Wabash R. Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386, 1390-1391, 81 L.Ed.2d 734; Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 657, 98 L.Ed.2d 798. Further, although re lief may be granted from judgment for excusable neglect of a party or its counsel such as the failure to receive notice of a judgment, neither ignorance nor carelessness on the part of an attorney will provide grounds for relief under FRCP 60(b). Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir.1969).
The mistake made by appellant’s counsel perhaps arguably falls within the gray area between carelessness and excusable neglect. Given the change in judges assigned to the case and the conceivably ambiguous comments made by Judge Getzendanner’s minute clerk, it is possible that some confusion resulted. If this conversation were the only method by which Hough’s counsel could confirm the status of the defendants’ motion to strike the plaintiffs’ joint counter-affidavit, her misunderstanding might be comprehensible. However, as an attorney, she should realize the importance of written confirmations of telephone conversations, particularly one as vague as that between her and Judge Getzendanner’s minute clerk. Given that three motions to strike had been filed by defendants and three replies to the motions to strike by plaintiffs, it is unfortunate that the conversation did not identify the various motions.
Any confusion that may have resulted from the conversation with Judge Getzen-danner’s minute clerk should certainly have been dispelled by counsel’s receipt of Judge Getzendanner’s order on July 20, 1987. That order made no mention of denying any motion to strike, indicating only that plaintiffs were free to file an oversized brief as requested in their July 9, 1987, nunc pro tunc motion. Appellant’s counsel concedes that she failed to verify her understanding of the telephone conversation by reading the order. In her affidavit, Ms. Szeja explained that the order was called to her attention by her secretary several days following the July 17, 1987, telephone conversation. Ms. Szeja responded to her secretary that she already was aware of the contents and declined to read the order until after January 11,1988, the day Judge Hart ruled in favor of defendants’ motions for summary judgment. Neither did this counsel ever receive a written order indicating that any of the defendants’ three motions to strike were granted. She had an additional opportunity to clarify any remaining confusion before Judge Hart at the status hearing held on November 13, 1987. “An abuse of discretion is established only where no reasonable man could agree with the district court; if reasonable men could differ as to the propriety of the court’s action, no abuse of discretion has been shown.” Smith v. Widman Trucking & Excavating, 627 F.2d 792, 796 (7th Cir.1980). For the preceding reasons this case falls on the side of carelessness rather than excusable neglect.
Plaintiff relies on A.F. Dormeyer Co. v. M.J. Sales & Distributing Co., 461 F.2d 40 (7th Cir.1972), where this Court granted FRCP 60(b) relief from a default judgment entered against defendant. In Dormeyer, defendant’s counsel prepared and mailed an answer to plaintiff’s attorney, but did not file an original or copy of the answer with the clerk of the district court. Defendant’s counsel sought to establish excusable neglect by demonstrating that as an attorney he had practiced law for 37 years in New York where it is not necessary to file an appearance and answer with the clerk of the court unless the summons sets forth such requirement. This Court was persuaded to relieve the defendant of the default judgment resulting from counsel’s error given that he had prepared an answer and mailed a copy to plaintiffs counsel and had acted promptly in seeking to set aside the default judgment. “ ‘The philosophy of modern federal procedure favors trials on the merits and default judgments should generally be set aside where the moving party acts with reasonable promptness, alleges a meritorious defense to the action, and where the default has not been willful.’ ” Dormeyer, 461 F.2d at 43, quoting Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C.Cir.1966).
Although Dormeyer is often cited for its broad pronouncement that courts have been reluctant to attribute to the parties the errors of their counsel, the policy considerations surrounding this statement do not apply to this appellant’s situation. The Dormeyer default judgment entered for technical noncompliance is a much harsher result than Judge Hart’s entering summary judgment where these plaintiffs failed to submit a permissible statement of contested facts in opposition to summary judgment. Plaintiff Hough could certainly have challenged the district court’s grant of summary judgment in this Court by filing a timely appeal, thus enabling us to assess the merits of her claims. Instead, we are compelled to review for an abuse of discretion the district judge’s action in failing to excuse counsel’s carelessness.
The facts of this case are dissimilar to those in Ellingsworth v. Chrysler, 665 F.2d 180 (7th Cir.1981), in which the attorney misunderstood on which date the district court had set the case for trial due to confusing remarks made by the district judge. In Ellingsworth, no trial date notice was sent to the attorney. Consequently, the attorney failed to appear on the trial date, and the district court entered a default judgment in favor of the plaintiff. Under the circumstances, this Court found that it was an abuse of discretion for the district court to deny the defendant relief from judgment.
No such compelling circumstances exist here. Appellant’s counsel received written notice of Judge Getzendanner’s order clarifying any confusion that may have been caused by her minute clerk’s conversation. She had further opportunity before Judge Hart to determine the status of defendants’ three motions to strike. Relief will not be allowed under FRCP 60(b) for an attorney’s carelessness such as revealed here. See, e.g., Kagan v. Caterpillar Tractor Co., 795 F.2d 601 (7th Cir.1986) (failure of counsel to attend to the plaintiff’s litigation due to counsel’s involvement in another matter was not excusable neglect). Considering the culpability of appellant’s counsel in failing to read the district court’s July 17, 1987, order limited to permitting an oversize brief, it was not an abuse of Judge Hart’s discretion to deny plaintiffs’ FRCP 60(b) motion. Insofar as Maywood challenges the district court’s denial of sanctions, its cross-appeal is untimely and is dismissed.
The judgment of the district court is affirmed, with costs to the Union.
. Hough’s cause of action was consolidated with that of fellow Maywood employee, Geri Gallagher, in the district court on February 23, 1987. Although Gallagher joined in the motion to reconsider submitted to the district court, she does not join in this appeal.
. Apparently the correct name of defendant is Maywood Park Trotting Association, Inc.
. In response to defendants’ motion for summary judgment, plaintiffs should have filed a statement conforming with Rule 12(f) of the Local Rules for the Northern District of Illinois. Rule 12(f) provides:
(f) Motions for summary judgment; Opposing party. Each party opposing a Rule 56 motion shall serve and file, together with opposing affidavits (if any) and other materials referred to in Rule 56(e) and a supporting memorandum of law, a concise response to the movant’s statement. That response shall contain (1) a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (2) a statement, consisting of short numbered paragraphs, of any additional facts which the opposing party maintains warrants the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
. Ms. Szeja's allegations are contained in her affidavit attached as Exhibit C to plaintiffs’ motion to reconsider filed on February 17, 1988, in the district court before Judge Hart.
. Defendants’ motion to strike plaintiffs’ memorandum of law in support of their response to defendants' motions for summary judgment became moot because the July 17th nunc pro tunc order allowed the oversize memorandum.
. FRCP 56(e) provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. James HARRIS, Defendant-Appellant.
No. 73-1179.
United States Court of Appeals, Sixth Circuit.
Argued June 11, 1973.
Decided June 28, 1973.
J. Kimbrough Johnson, Jr. (Court Appointed) Memphis, Tenn., for defendant-appellant.
Robert F. Colvin, Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Johnnie L. Johnson, Jr., Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., on brief.
Before McCREE and MILLER, Circuit Judges and NEESE, District Judge.
The Honorable C. G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.
PER CURIAM.
We consider an appeal from a judgment entered January 5, 1973 on a jury verdict convicting defendant on the second of two counts of an indictment charging a violation of the Mann Act, 18 U.S.C. § 2421. The indictment charged defendant with knowingly transporting in interstate commerce from Memphis, Tennessee to Detroit, Michigan two females, Edith Davis and a girl, Myra White, who was not 18 years old, for the purpose of prostitution, debauchery and other immoral purposes.
The issues raised on appeal are:
1) Was there substantial evidence to support a jury verdict that defendant’s dominant purpose for the trip was for prostitution and debauchery?
2) Did the U. S. District Court err by instructing the jury that the dominant motive for transporting the females, as distinguished from the dominant motive of the trip, is the essential element of the offense?
The evidence showed that appellant, a Memphis resident, owns several parcels of rental property in Detroit. On January 21, 1972, he traveled to Detroit for the purpose of making repairs on some of his properties and took with him Myra White and Edith Davis, whom he picked up at a bus stop. Defendant was also accompanied by George Anthony, who agreed to assist appellant in making the repairs. Anthony was a co-defendant in the trial below and was acquitted.
The women testified that appellant forced them to attempt to solicit men at a truck stop in Ohio and later at cafes in Detroit. Defendant testified that the women accompanied him solely for the pleasure of his company and denied forcing them to perform acts of prostitution at any time during the trip from Memphis to Detroit.
Appellant contends that the Supreme Court has interpreted the Mann Act to proscribe the interstate transporting of women for the purpose of prostitution only if the dominant purpose of the escorting defendant in making the trip is the commission of immoral acts. He relies on the following language from Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 1040, 88 L.Ed. 1331 (1944): “An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result.”
The trial judge disagreed with appellant’s interpretation of Mortensen and focused not on the purpose of the trip but instead upon the purpose of defendant in transporting the females. In his charge he instructed the jury as follows:
“. . . I charge you that it is necessary that it be shown that in transporting or causing to be transported one or both of these females, the defendants’ dominant motive in transporting or causing to be transported was prostitution, debauchery or other immoral purpose or practice. It is not necessary that it be shown that the dominant motive in making the trip so far as a defendant is concerned is for that purpose, but it is necessary to show, as I say, that the dominant motive of the defendant in transporting the female was for that purpose.”
We agree with the district court, and determine that the charge is free from error. The quotation from Mortensen must be read in context, and it is clear from such reading that the Supreme Court was not concerned with the purpose of the escorting defendants in making the interstate trip, but instead with their purpose in transporting the women who were concededly prostitutes. This interpretation is clear from the Supreme Court’s statement of the issue in Mortensen — “The primary issue before us is whether there was any evidence from which the jury could rightly find that petitioners transported the girls from Salt Lake City to Grand Island for an immoral purpose in violation of the Mann Act.” 322 U.S. at 373, 64 S.Ct. at 1040.
The Supreme Court expressed no concern about any other purpose the defendants might have had for making the trip. In fact, it was conceded that their purpose was an innocent one, and if appellant here is correct, that concession would have made unnecessary the determination of the issue quoted above.
This construction of the Mann Act is consistent with the rationale of United States v. Hon, 306 F.2d 52 (7th Cir. 1962), relied on by appellant. There, the court in reversing a conviction, said: “. . . The dominant motive of their interstate movement was not an intention that the woman should be transported in interstate commerce for the purpose of prostitution.” 306 F.2d at 55. (Emphasis supplied.)
It is clear in Hon that the focus of the statute is on the purpose for the transporting of the woman. • This is the rule of our circuit and we reaffirm it here. See United States v. Salter, 346 F.2d 509 (6th Cir. 1965).
We determine from an examination of the record that there was ample evidence to support the jury’s verdict.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_concur
|
1
|
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.
Dewey BROWN, as the Personal Representative of the Estate of Charlie Brown, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 86-5705.
United States Court of Appeals, Eleventh Circuit.
March 1, 1988.
Leon B. Kellner, U.S. Atty., Michael Min-kin, David O. Leiwant, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.
Mark J. Feldman, Miami, Fla., for Dewey Brown.
Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD , Senior District Judge.
Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
PER CURIAM:
In this wrongful death suit against the United States, the district court found liability and awarded damages in the amount of $49,328.50. On appeal, the United States argues that the district court lacked subject matter jurisdiction because the claimant failed properly to exhaust administrative remedies as required by 28 U.S.C. § 2675(a) (1982). Alternatively, the United States argues that it is entitled to a setoff equal to the amount received by the claimant in settlement of a state court suit involving different defendants but the same wrongful death. We find merit to the United States’ alternative argument and accordingly reverse.
I.
In March 1983, Charlie Brown filed a medical malpractice suit in the federal district court. The suit arose from his treatment at two medical facilities, Jackson Memorial Hospital and the Veterans Administration (VA) Hospital in Miami. The complaint named five defendants: the United States, two physicians employed by Jackson Memorial, and two entities that owned and operated Jackson Memorial. The complaint alleged that Brown had received treatment at Jackson Memorial between October 1981 and February 1982, and then at the VA Hospital between February 1982 and April 1982, and that doctors at both facilities had negligently failed to diagnose the tongue and throat cancer from which Brown was then suffering.
With respect to the claims against the United States, Brown asserted jurisdiction under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680 (1982). Brown had filed a claim with the VA eight months earlier and had therefore exhausted his administrative remedies as required by 28 U.S.C. § 2675(a) (1982). With respect to the claims against the Jackson Memorial defendants, Brown asserted federal jurisdiction under the theory of pendent party jurisdiction.
In March 1983, the district court dismissed those counts of the complaint that pertained to the four Jackson Memorial defendants. The court held that it did not have pendent party jurisdiction over those claims because the acts of negligence attributed to the Jackson Memorial defendants were separate and distinct from those attributed to the United States. Brown then filed a medical malpractice suit in a Florida state court, naming as defendants the four parties dismissed from the federal suit.
Charlie Brown died before either the state court malpractice suit or the federal court malpractice suit reached trial. On February 1,1984, Charlie Brown’s attorney filed a wrongful death claim with the VA. One week later, the attorney moved the federal district court to substitute Dewey Brown, who had been appointed personal representative of Charlie Brown’s estate, as party plaintiff in the suit originally commenced by Charlie Brown. At the same time, the attorney moved the court to amend the complaint so as to set forth an action for wrongful death under Fla.Stat. § 768.19 (1985).
The United States opposed both motions, contending that Dewey Brown had failed to satisfy the jurisdictional prerequisite set forth in 28 U.S.C. § 2675(a) (1982). Section 2675(a) provides that as a prerequisite to maintaining a suit against the United States under the FTCA, a plaintiff must present notice of his claim to the appropriate federal agency, in this case the VA. Only after the claim has been denied or six months have passed may the plaintiff sue in federal court on the claim. Id. Conceding that the decedent had satisfied this requirement with respect to the original personal injury suit, the United States argued that the wrongful death action was a new action and as such required a separate administrative filing. Although the decedent’s attorney had in fact made a new filing setting forth a wrongful death claim, the requisite six months had not yet passed.
The district court held that the wrongful death claimant could rely on the filing made in connection with the original personal injury suit. The court observed that “[wjhile the measure of any damages recovered in this case under the Wrongful Death Act will vary from those potentially recoverable under the original malpractice claims, the underlying ‘claims’ are identical, and administrative proceedings on them have long since been exhausted.” Accordingly, the court granted the motions to amend the complaint and the case proceeded to trial in June 1985.
Meanwhile, upon Charlie Brown’s death, the state court malpractice suit against the Jackson Memorial defendants had also been transformed into a wrongful death suit. As in the federal court suit, Dewey Brown had been substituted as plaintiff. Furthermore, as in the federal court suit, the wrongful death claims were brought under Fla.Stat. § 768.19 (1985). The parties to the state court suit entered into settlement negotiations, and, on July 8, 1985, Dewey Brown and Charlie Brown’s surviving daughter signed a release with the defendants, settling the case for $237,-500. The settlement agreement provided that “[t]his Release ... expressly excludes any and all claims ... against the United States.”
Upon conclusion of the trial in federal court, the court entered a final judgment in favor of Dewey Brown. In its findings of facts and conclusions of law, the court stated that “[rjegardless of any prior negligence that may or may not have been attributable to [the Jackson Memorial defendants], [Charlie] Brown’s death was more likely than not caused by the V.A. Hospital’s negligence.” The court awarded Charlie Brown’s estate $2,753 in medical expenses and $5,077 in funeral expenses. It also awarded $41,500 to be applied for the benefit of Charlie Brown’s daughter, representing her damages for lost support, lost parental companionship and guidance, and the pain and suffering she experienced as a result of her father’s death.
The United States then moved the district court pursuant to Fed.R.Civ.P. 59(a) to amend the final judgment to reflect a set-off in the amount of the settlement between Dewey Brown and the state court defendants. The United States argued that it was entitled to the setoff because the amount paid by the state court defendants had been in settlement of damages identical to those claimed in the federal court wrongful death suit. The district court rejected this argument and denied the motion, concluding that the injury the United States caused was separate from any injury that the state court defendants may have caused.
II.
On appeal, the United States first argues that the district court lacked subject matter jurisdiction in this wrongful death action because Dewey Brown did not file a claim with the VA prior to bringing suit. The FTCA establishes that as a prerequisite to maintaining a suit against the United States, a plaintiff must present notice of the claim to the appropriate federal agency. The FTCA’s filing requirement is satisfied if the claimant “(1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim.” Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980). The congressional purposes of the administrative claim procedure are “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” Id. at 288 (quoting S.Rep. No. 1327, 89th Cong., 2d Sess. 6, reprinted in 1966 U.S.Code Cong. & Admin.News 2515, 2516). By requiring this notice, Congress sought to ensure that the agency is apprised of the circumstances underlying the claim, so that the agency may conduct an investigation and respond to the claimant by settlement or by defense. Id. at 289; see Rise v. United States, 630 F.2d 1068, 1071 (5th Cir.1980).
The notice requirement does not require a claimant to enumerate each theory of liability in the claim. Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983); see Rise, 630 F.2d at 1071; Adams, 615 F.2d at 289; Speer v. United States, 512 F.Supp. 670, 674 (N.D.Tex.1981), aff'd, 675 F.2d 100 (5th Cir.1982); see also Tidd v. United States, 786 F.2d 1565, 1567 (11th Cir.1986) (“Although a claimant has an obligation to give notice of a claim under § 2675, he or she does not have an obligation to provide further information to assist settlement of the matter.”) (emphasis in original). Compelling a claimant to advance all possible causes of action and legal theories is “overly technical” and may frustrate the purpose of the section 2675(a) notice requirement. Mellor v. United States, 484 F.Supp. 641, 642 (D.Utah 1978). A “claim” is not synonymous with a “legal cause of action.” Nelson v. United States, 541 F.Supp. 816, 818 (M.D.N.C.1982); Mellor, 484 F.Supp. at 642. In this case, the claim filed by Charlie Brown provided the YA with the facts necessary to conduct a full investigation of the underlying circumstances. Requiring the appellee to exhaust the administrative claim procedure again would serve no useful purpose. It is unlikely that the agency would conduct a second investigation or otherwise act any differently.
The United States also maintains that until the new claimant files an administrative claim the district court lacks subject matter jurisdiction because a “new, independent cause of action arose when Charlie Brown died.” The Florida Wrongful Death Act provides that a wrongful death action may be maintained on behalf of statutory beneficiaries if the decedent was entitled to bring an action based on the wrongful event. See Fla.Stat. §§ 768.19-20 (1985). Although a Florida wrongful death action is clearly distinct from a personal injury action, liability of a defendant in a wrongful death action is based on the negligent or wrongful act which injures the decedent. See Martin v. United Sec. Servs. Inc., 314 So.2d 765, 770 (Fla.1975); Gaboury v. Flagler Hosp., Inc., 316 So.2d 642, 644 (Fla.Dist.Ct.App.1975). “The death is not the operative fact upon which liability rests.” Nelson, 541 F.Supp. at 818. A new administrative claim is unnecessary for a wrongful death action because while a different legal injury is suffered, both actions are based on the same injury in fact. But see Raymond v. United States, 445 F.Supp. 740 (E.D.Mich.1978) (wrongful death claim is separate and distinct from personal injury claim under Michigan law). Although a new cause of action accrued at the time of Brown’s death, the United States’ liability is based on the same facts presented in Brown’s administrative claim. We therefore hold that the district court properly exercised subject matter jurisdiction in this case.
III.
The United States next argues that the district court erred in denying its request for a setoff in the amount of the settlement between Dewey Brown and the state court defendants. Since the district court made the damages award under the Florida Wrongful Death Act, Florida law governs whether and to what extent that award should be reduced by setoff. See Scheib v. Florida Sanitarium Benevolent Ass’n, 759 F.2d 859 (11th Cir.1985). Florida has adopted the Uniform Contribution Among Tortfeasors Act. See Fla.Stat. § 768.31 et seq. (1985). Section 768.31(5) provides that
[wjhen a release or covenant to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for ... the same wrongful death, ... it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant.
This statute plainly requires that the United States be granted the setoff it requests. Both the United States and the state court defendants were sued for the same wrongful death. Both suits sought to recover those damages that the Florida legislature has authorized in Fla.Stat. § 768.21 (1985). The state court defendants settled out of court. Section 768.31(5) unequivocally requires that the claim against the United States be reduced by the amount of that settlement.
Appellee’s argument that section 768.-31(5) does not require a setoff is based principally on the district court’s finding that the injury attributable to the United States was separate from any injury that may be attributable to the state court defendants. This argument reflects a misunderstanding of the nature of the recovery authorized by the Florida Wrongful Death Act. Under that Act, an award may include two elements: (1) compensation for injuries suffered by the decedent’s survivors as a result of the wrongful death (pain and suffering, lost support or services, and lost companionship); and (2) compensation for injuries suffered by the decedent’s estate as a result of the wrongful death (medical and funeral expenses). See Fla. Stat. § 768.21 (1985). Thus, the injury for which the Wrongful Death Act authorizes recovery is not the personal injury that the decedent suffered, but rather the injury that his estate and survivors have suffered and will suffer as a result of the wrongful death. The relative responsibility of the various defendants for causing the death is a separate issue that bears no relation to this injury. It therefore makes no difference what the district court thought about the relative responsibility of the United States and the state court defendants for Charlie Brown’s death. The fact of the matter is that Dewey Brown sought recovery for the same injury — the injury flowing from Charlie Brown’s death — in two separate suits, one of which was settled out of court. Under Florida law, the claim against the nonsettling party must be reduced by the amount of the settlement.
Of course, a setoff would be improper if the federal court judgment and the state court settlement purported to compensate separate aspects of the injury flowing from the wrongful death. For example, a wrongful death award intended to compensate the injury sustained by the survivors cannot be offset by a settlement reflecting damages sustained by the estate. See Devlin v. McMannis, 231 So.2d 194 (Fla.1970). Such is not the case here, however. Both the state court complaint and the federal court complaint requested damages to the full extent authorized under the Wrongful Death Act. In light of the record before us, we must assume that the state court settlement and the federal court judgment each independently comprehended every item of recovery enumerated in Fla.Stat. § 768.21 (1985). Therefore, the United States is entitled to a setoff in the full amount of the state court settlement.
IV.
Because the setoff to which the United States is entitled is a total setoff, on receipt of our mandate the district court shall enter judgment for the United States.
REVERSED.
. The original complaint named the VA as defendant. On May 5, 1983, the parties stipulated to the substitution of the United States for the VA as the proper defendant.
. The complaint alleged that the University of Miami and the Public Health Trust of Dade County, Florida owned, operated, and controlled Jackson Memorial Hospital.
. Section 2675(a) provides in pertinent part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
. The complaint did not allege any other basis for federal subject matter jurisdiction.
. Under the theory of pendent party jurisdiction, "a court in some limited circumstances may bring in ‘state’ parties over which it could not otherwise exercise jurisdiction.” Williams v. Bennett, 689 F.2d 1370, 1379 (11th Cir.1982). The availability of pendent party jurisdiction is limited by both constitutional and statutory constraints. Article III requires that the federal and pendent party claims arise from a common nucleus of operative fact. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 371-72, 98 S.Ct. 2396, 2401-02, 57 L.Ed.2d 274 (1978). Furthermore, "[bjefore it can be concluded that [pendent party] jurisdiction exists, a federal court must satisfy itself ... that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence." Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976). This court has held that the FTCA contains "no express or implied negation of the federal courts' power to hear pendent party claims when that statute is invoked to confer jurisdiction.” Lykins v. Pointer, 725 F.2d 645, 647 (11th Cir.1984). Thus, a district court has the power to assert pendent party jurisdiction over a state law claim where the principal claim is brought under the FTCA, provided that the constitutional test is satisfied, i.e., the pendent party claim and the principal claim arise from a common nucleus of operative fact. The district court in this case apparently concluded that the constitutional test was not satisfied.
. See supra note 3.
. Indeed in this case a second claim was filed with the VA approximately one month after Charlie Brown’s death, but it does not appear from the record that any substantial action was taken.
. The government's ability to settle claims will not be hampered by permitting plaintiffs to forgo a second administrative claim in wrongful death actions. In Florida a wrongful death action depends on the same proof of negligence needed to maintain a personal injury action. See Fla.Stat. § 768.19 (1985). The death of a claimant therefore does not alter the government’s analysis of the strengths and weaknesses of its case and accordingly its settlement evaluation. In addition, while the amount of damages available in a wrongful death action may depend on several factors, we have held that the identification of additional qualified beneficiaries may not affect the amount claimed. See Davis v. Marsh, 807 F.2d 908, 912 (11th Cir.1987).
.We note that a claimant would have to meet the jurisdictional requirements if a different personal injury were suffered. See, e.g., Rucker v. United States Dep’t of Labor, 798 F.2d 891, 893-94 (6th Cir.1986) (FTCA’s jurisdictional requirement not satisfied for wife and children of a tort claimant where claimant’s administrative claim fails to identify them as claimants); Walker v. United States, 471 F.Supp. 38, 42 (M.D.Fla.1978) (husband’s administrative claim did not satisfy the filing requirement for his wife’s personal injury claim for loss of consortium), aff’d, 597 F.2d 770 (5th Cir.1979).
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
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sc_casesource
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028
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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.
ELLIS et al. v. BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYES et al.
No. 82-1150.
Argued January 9, 1984
Decided April 25, 1984
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined, and in Parts I, II, III, IV, and V (except Subdivision 1) of which Powell, J., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 457.
Michael E. Merrill argued the cause and filed briefs for petitioners.
Laurence Gold argued the cause for respondents. With him on the brief were George Kaufmann and James Coppess
Briefs of amici curiae urging reversal were filed for the Legal Foundation of America by David Crump; and for the Mid-Atlantic Legal Foundation et al. by Myma P. Field.
Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by J. Albert Woll and Marsha Berzon; and for the National Education Association by Robert H. Chanin.
Briefs of amici curiae were filed for the State Bar of California by Seth M. Hufstedler and Robert S. Thompson; and for Eddie Keller et al. by Ronald A. Zumbrun and Anthony T. Caso.
Justice White
delivered the opinion of the Court.
In 1951, Congress amended the Railway Labor Act (Act or RLA) to permit what it had previously prohibited — the union shop. Section 2, Eleventh of the Act permits a union and an employer to require all employees in the relevant bargaining unit to join the union as a condition of continued employment. 45 U. S. C. § 152, Eleventh. In Machinists v. Street, 367 U. S. 740 (1961), the Court held that the Act does not authorize a union to spend an objecting employee’s money to support political causes. The use of employee funds for such ends is unrelated to Congress’ desire to eliminate “free riders” and the resentment they provoked. Id., at 768-769. The Court did not express a view as to “expenditures for activities in the area between the costs which led directly to the complaint as to ‘free riders,’ and the expenditures to support union political activities.” Id., at 769-770, and n. 18. Petitioners challenge just such expenditures.
I
In 1971, respondent Brotherhood of Railway, Airline and Steamship Clerks (union or BRAC) and Western Airlines implemented a previously negotiated agreement requiring that all Western’s clerical employees join the union within 60 days of commencing employment. As the agreement has been interpreted, employees need not become formal members of the union, but must pay agency fees equal to members’ dues. Petitioners are present or former clerical employees of Western who objected to the use of their compelled dues for specified union activities. They do not contest the legality of the union shop as such, nor could they. See Railway Employees v. Hanson, 351 U. S. 225 (1956). They do contend, however, that they can be compelled to contribute no more than their pro rata share of the expenses of negotiating agreements and settling grievances with Western Airlines. Respondents — the national union, its board of adjustment, and three locals — concede that the statutory authorization of the union shop does not permit the use of petitioners’ contributions for union political or ideological activities, see Machinists v. Street, supra, and have adopted a rebate program covering such expenditures. The parties disagree about the adequacy of the rebate scheme, and about the legality of burdening objecting employees with six specific union expenses that fall between the extremes identified in Hanson and Street: the quadrennial Grand Lodge convention, litigation not involving the negotiation of agreements or settlement of grievances, union publications, social activities, death benefits for employees, and general organizing efforts.
The District Court for the Southern District of California granted summary judgment to petitioners on the question of liability. Relying entirely on Street, it found that the six expenses at issue here, among others, were all “non-collective bargaining activities” that could not be supported by dues collected from protesting employees. After a trial on damages, the court concluded that with regard to political and ideological activities, the union’s existing rebate program, under which objecting employees were ultimately reimbursed for their share of union expenditures on behalf of political and charitable causes, was a good-faith effort to comply with legal requirements and adequately protected employees’ rights. Relying on exhibits presented by respondents, the court ordered refunds of approximately 40% of dues paid for the expenditures at issue here. It also required that protesting employees’ annual dues thereafter be reduced by the amount spent on activities not chargeable to them during the prior year. The court seems to have envisioned that this scheme would supplant the already-existing rebate scheme, for it included political expenditures among those to be figured into the dues reduction.
The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. 685 F. 2d 1065 (1982). It held that the union’s rebate plan was adequate even though it allowed the union to collect the full amount of a protesting employee’s dues, use part of the dues for objectionable purposes, and only pay the rebate a year later. It found suggestions in this Court’s cases that such a method would be acceptable, and had itself approved the rebate approach in an earlier case. The opinion did not address the dues reduction scheme imposed by the District Court. Id., at 1069-1070. Turning to the question of permissible expenditures, the Court of Appeals framed “the relevant inquiry [a]s whether a particular challenged expenditure is germane to the union’s work in the realm of collective bargaining.... [That is, whether it] can be seen to promote, support or maintain the union as an effective collective bargaining agent.” Id., at 1072, 1074-1075. The court found that each of the challenged activities strengthened the union as a whole and helped it to run more smoothly, thus making it better able to negotiate and administer agreements. Because the six activities ultimately benefited the union’s collective-bargaining efforts, the union was free to finance them with dues collected from objecting employees. One judge dissented, arguing that these were all “institutional expenses” that objecting employees cannot be forced to pay. Id., at 1075-1076.
Petitioners sought review of the Court of Appeals’ ruling on permissible expenses and the adequacy of the rebate scheme. We granted certiorari. 460 U. S. 1080 (1983). We hold that the union’s rebate scheme was inadequate and that the Court of Appeals erred in finding that the RLA authorizes a union to spend compelled dues for its general litigation and organizing efforts.
II
A
There is some question as to whether petitioners’ challenge to the rebate program is properly before us. In 1980, within a month of the entry of the District Court’s judgment, the union was decertified as the bargaining representative of Western Airlines’ clerical employees. Thus, none of the petitioners is presently represented by the union or required to pay dues to it. Petitioners’ claim for an injunction against the rebate scheme would therefore appear to be moot. But petitioners also sought money damages, and damages for an illegal rebate program would necessarily have been in the form of interest on money illegally held for a period of time. That claim for damages remains in the case. The amount at issue is undeniably minute. But as long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot. Powell v. McCormack, 395 U. S. 486, 496-498 (1969).
Respondents argue that the Court of Appeals erred in addressing the validity of the union’s rebate scheme because it had been supplanted by the District Court’s order, from which the union had not appealed. They also contend that, for the same reason, the adequacy of the old system is “not justiciable” and “academic.” Brief for Respondents 11, and n. 5. We disagree. The District Court specifically held that the rebate scheme vindicated the dissenting employees’ rights with regard to political and ideological activities, and the Court of Appeals affirmed. The Court of Appeals also held that the expenditures the union had included in the rebate scheme were the only ones to which protesting employees could not be compelled to contribute, thereby eliminating the basis for the District Court’s additional order that the union reduce dues prospectively. In any event, even though the District Court required a dues reduction scheme for the future, petitioners did not receive damages for the prior allegedly inadequate rebate program, precisely because both lower courts upheld it. In these circumstances, the issue is properly before us.
B
As the Court of Appeals pointed out, there is language in this Court’s cases to support the validity of a rebate program. Street suggested “restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he had advised the union he was opposed.” 367 U. S., at 775. See also Abood v. Detroit Board of Education, 431 U. S. 209, 238 (1977). On the other hand, we suggested a more precise advance reduction scheme in Railway Clerks v. Allen, 373 U. S. 113, 122 (1963), where we described a “practical decree” comprising a refund of exacted funds in the proportion that union political expenditures bore to total union expenditures and the reduction of future exactions by the same proportion. Those opinions did not, nor did they purport to, pass upon the statutory or constitutional adequacy of the suggested remedies. Doing so now, we hold that the pure rebate approach is inadequate.
By exacting and using full dues, then refunding months later the portion that it was not allowed to exact in the first place, the union effectively charges the employees for activities that are outside the scope of the statutory authorization. The cost to the employee is, of course, much less than if the money was never returned, but this is a difference of degree only. The harm would be reduced were the union to pay interest on the amount refunded, but respondents did not do so. Even then the union obtains an involuntary loan for purposes to which the employee objects.
The only justification for this union borrowing would be administrative convenience. But there are readily available alternatives, such as advance reduction of dues and/or interest-bearing escrow accounts, that place only the slightest additional burden, if any, on the union. Given the existence of acceptable alternatives, the union cannot be allowed to commit dissenters’ funds to improper uses even temporarily. A rebate scheme reduces but does not eliminate the statutory violation.
Ill
Petitioners’ primary submission is that the use of their fees to finance the challenged activities violated the First Amendment. This argument assumes that the Act allows these allegedly unconstitutional exactions. When the constitutionality of a statute is challenged, this Court first ascertains whether the statute can be reasonably construed to avoid the constitutional difficulty. E. g., Califano v. Yamasaki, 442 U. S. 682, 692-693 (1979); Ashwanderv. TV A, 297 U. S. 288, 347 (1936) (concurring opinion); Crowell v. Benson, 285 U. S. 22, 62 (1932). As the Court noted when faced with a similar claim in Street, “the restraints against unnecessary constitutional decisions counsel against” addressing petitioners’ constitutional claims “unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh also meant that the labor organization receiving an employee’s money should be free, despite that employee’s objection, to spend his money” for these activities. 367 U. S., at 749. We therefore first inquire whether the statute permits the union to charge petitioners for any of the challenged expenditures.
IV
Section 2, Eleventh contains only one explicit limitation to the scope of the union shop agreement: objecting employees may not be required to tender “fines and penalties” normally required of union members. 45 U. S. C. § 152, Eleventh. If there were nothing else, an inference could be drawn from this limited exception that all other payments obtained from voluntary members can also be required of those whose membership is forced upon them. Indeed, several witnesses appearing before the congressional Committees objected to the absence of any explicit limitation on the scope or amount of fees and dues that could be compelled. That Congress enacted the provision over these objections arguably indicates that it was willing to tolerate broad exactions from objecting employees.
Furthermore, Congress was well aware of the broad scope of traditional union activities. The hearing witnesses referred in general terms to the costs of “[activities of labor organizations resulting in the procurement of employee benefits,” House Hearings, at 10 (testimony of George Harrison), and the “policies and activities of labor unions,” id., at 50 (testimony of George Weaver). Indeed, it was pointed out that not only was the “securing and maintaining of a collective bargaining agreement... an expensive undertaking..., there are many other programs of a union” that require the financial and moral support of the workers. Id., at 275; Senate Hearings, at 236 (statement of Theodore Brown). In short, Congress was adequately informed about the broad scope of union activities aimed at benefiting union members, and, in light of the absence of express limitations in § 2, Eleventh it could be plausibly argued that Congress purported to authorize the collection from involuntary members of the same dues paid by regular members. This view, however, was squarely rejected in Street, over the dissents of three Justices, and the cases that followed it.
In Street, the Court observed that the purpose of § 2, Eleventh was to make it possible to require all members of a bargaining unit to pay their fair share of the costs of performing the function of exclusive bargaining agent. The union shop would eliminate “free riders,” employees who obtained the benefit of the union’s participation in the machinery of the Act without financially supporting the union. That purpose, the Court held, Congress intended to be achieved without “vesting the unions with unlimited power to spend exacted money.” 367 U. S., at 768. Undoubtedly, the union could collect from all employees what it needed to defray the expenses entailed in negotiating and administering a collective agreement and in adjusting grievances and disputes. The Court had so held in Railway Employees v. Hanson, 351 U. S. 225 (1956). But the authority to impose dues and fees was restricted at least to the “extent of denying the unions the right, over the employee’s objection, to use his money to support political causes which he opposes,” 367 U. S., at 768, even though Congress was well aware that unions had historically expended funds in the support of political candidates and issues. Employees could be required to become “members” of the union, but those who objected could not be burdened with any part of the union’s expenditures in support of political or ideological causes. The Court expressed no view on other union expenses not directly involved in negotiating and administering the contract and in settling grievances.
Railway Clerks v. Allen, 373 U. S. 113 (1963), reaffirmed the approach taken in Street, and described the union expenditures that could fairly be charged to all employees as those “germane to collective bargaining.” Id., at 121, 122. Still later, in Abood v. Detroit Board of Education, 431 U. S. 209 (1977), we found no constitutional barrier to an agency shop agreement between a municipality and a teachers’ union insofar as the agreement required every employee in the unit to pay a service fee to defray the costs of collective bargaining, contract administration, and grievance adjustment. The union, however, could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective-bargaining agent. In neither Allen nor Abood, however, did the Court find it necessary further to define the line between union expenditures that all employees must help defray and those that are not sufficiently related to collective bargaining to justify their being imposed on dissenters.
We remain convinced that Congress’ essential justification for authorizing the union shop was the desire to eliminate free riders — employees in the bargaining unit on whose behalf the union was obliged to perform its statutory functions, but who refused to contribute to the cost thereof. Only a union that is certified as the exclusive bargaining agent is authorized to negotiate a contract requiring all employees to become members of or to make contributions to the union. Until such a contract is executed, no dues or fees may be collected from objecting employees who are not members of the union; and by the same token, any obligatory payments required by a contract authorized by § 2, Eleventh terminate if the union ceases to be the exclusive bargaining agent. Hence, when employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.
With these considerations in mind, we turn to the particular expenditures for which petitioners insist they may not be charged.
V
1. Conventions. Every four years, BRAC holds a national convention at which the members elect officers, establish bargaining goals and priorities, and formulate overall union policy. We have very little trouble in holding that petitioners must help defray the costs of these conventions. Surely if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy. Conventions such as those at issue here are normal events about which Congress was thoroughly informed and seem to us to be essential to the union’s discharge of its duties as bargaining agent. As the Court of Appeals pointed out, convention “activities guide the union’s approach to collective bargaining and are directly related to its effectiveness in negotiating labor agreements.” 685 F. 2d, at 1073. In fact, like all national unions, BRAC is required to hold either a referendum or a convention at least every five years for the election of officers. 29 U. S. C. § 481(a). We cannot fault it for choosing to elect its officers at a convention rather than by referendum.
2. Social Activities. Approximately 0.7% of Grand Lodge expenditures go toward purchasing refreshments for union business meetings and occasional social activities. 685 F. 2d, at 1074. These activities are formally open to nonmember employees. Petitioners insist that these expenditures are entirely unrelated to the union’s function as collective-bargaining representative and therefore could not be charged to them. While these affairs are not central to collective bargaining, they are sufficiently related to it to be charged to all employees. As the Court of Appeals noted, “[t]hese small expenditures are important to the union’s members because they bring about harmonious working relationships, promote closer ties among employees, and create a more pleasant environment for union meetings.” Ibid.
We cannot say that these de minimis expenses are beyond the scope of the Act. Like conventions, social activities at union meetings are a standard feature of union operations. In a revealing statement, Senator Thomas, Chairman of the Senate Subcommittee, made clear his disinclination to have Congress define precisely what normal, minor union expenses could be charged to objectors; he did not want the bill to say that “the unions... must not have any of the... kinds of little dues that they take up for giving a party, or something of that nature.” Senate Hearings, at 173-174. There is no indication that other Members of Congress were any more inclined to scrutinize the minor incidental expenses incurred by the union in running its operations.
3. Publications. The Grand Lodge puts out a monthly magazine, the Railway Clerk/interchange, paid for out of the union treasury. The magazine’s contents are varied and include articles about negotiations, contract demands, strikes, unemployment and health benefits, proposed or recently enacted legislation, general news, products the union is boycotting, and recreational and social activities. See 685 F. 2d, at 1074; District Court’s Findings of Fact, 3 App. 236; Brief for Petitioners 22; Brief for Respondents 32, and n. 19. The Court of Appeals found that the magazine “is the union’s primary means of communicating information concerning collective bargaining, contract administration, and employees’ rights to employees represented by BRAC.” 685 F. 2d, at 1074. Under the union’s rebate policy, objecting employees are not charged for that portion of the magazine devoted to “political causes.” App. Exhibits 436. The rebate is figured by calculating the number of lines that are devoted to political issues as a proportion of the total number of lines. Tr. of Oral Arg. 38.
The union must have a channel for communicating with the employees, including the objecting ones, about its activities. Congress can be assumed to have known that union funds go toward union publications; it is an accepted and basic union activity. The costs of “worker education” were specifically mentioned during the hearings. House Hearings, at 275; Senate Hearings, at 236. The magazine is important to the union in carrying out its representational obligations and a reasonable way of reporting to its constituents.
Respondents’ limitation on the publication costs charged objecting employees is an important one, however. If the union cannot spend dissenters’ funds for a particular activity, it has no justification for spending their funds for writing about that activity. By the same token, the Act surely allows it to charge objecting employees for reporting to them about those activities it can charge them for doing.
4. Organizing. The Court of Appeals found that organizing expenses could be charged to objecting employees because organizing efforts are aimed toward a stronger union, which in turn would be more successful at the bargaining table. Despite this attenuated connection with collective bargaining, we think such expenditures are outside Congress’ authorization. Several considerations support this conclusion.
First, the notion that §2, Eleventh would be a tool for the expansion of overall union power appears nowhere in the legislative history. To the contrary, BRAC’s president expressly disclaimed that the union shop was sought in order to strengthen the bargaining power of unions. “Nor was any claim seriously advanced that the union shop was necessary to hold or increase union membership.” Street, 367 U. S., at 763, n. 13. Thus, organizational efforts were not what Congress aimed to enhance by authorizing the union shop.
Second, where a union shop provision is in place and enforced, all employees in the relevant unit are already organized. By definition, therefore, organizing expenses are spent on employees outside the collective-bargaining unit already represented. Using dues exacted from an objecting employee to recruit members among workers outside the bargaining unit can afford only the most attenuated benefits to collective bargaining on behalf of the dues payer.
Third, the free-rider rationale does not extend this far. The image of the smug, self-satisfied nonmember, stirring up resentment by enjoying benefits earned through other employees’ time and money, is completely out of place when it comes to the union’s overall organizing efforts. If one accepts that what is good for the union is good for the employees, a proposition petitioners would strenuously deny, then it may be that employees will ultimately ride for free on the union’s organizing efforts outside the bargaining unit. But the free rider Congress had in mind was the employee the union was required to represent and from whom it could not withhold benefits obtained for its members. Non-bargaining unit organizing is not directed at that employee. Organizing money is spent on people who are not union members, and only in the most distant way works to the benefit of those already paying dues. Any free-rider problem here is roughly comparable to that resulting from union contributions to pro-labor political candidates. As we observed in Street, that is a far cry from the free-rider problem with which Congress was concerned.
5. Litigation. The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation, litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative. The expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees. Contrary to the view of the Court of Appeals, therefore, unless the Western Airlines bargaining unit is directly concerned, objecting employees need not share the costs of the union’s challenge to the legality of the airline industry mutual aid pact; of litigation seeking to protect the rights of airline employees generally during bankruptcy proceedings; or of defending suits alleging violation of the nondiscrimination requirements of Title VII of the Civil Rights Act of 1964.
6. Death benefits. BRAC pays from its general funds a $300 death benefit to the designated beneficiary of any member or nonmember required to pay dues to the union. In Street, the Court did not adjudicate the legality under §2, Eleventh of compelled participation in a death benefit program, citing it as an example of an expenditure in the area between the costs which led directly to the complaint as to “free riders,” and the expenditures to support union political activities. 367 U. S., at 769-770, and n. 18. In Allen, the state trial court, like the District Court in this case, found that compelled payments to support BRAC’s death benefit system were not reasonably necessary or related to collective bargaining and could not be charged to objecting employees. See 373 U. S., at 117. We found it unnecessary to reach the correctness of that conclusion.
Here, the Court of Appeals said that death benefits have historically
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_casetyp2_geniss
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is criminal - state offense - other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
James E. GROPPI, Petitioner-Appellee, v. Jack LESLIE, Sheriff of Dane County, Respondent-Appellant.
No. 18538.
United States Court of Appeals, Seventh Circuit.
Oct. 28, 1970.
Robert W. Warren, Atty. Gen., David J. Hanson, Sverre O. Tinglum, Asst. Attys. Gen., Madison, Wis., for appellant.
William M. Coffey, Michael J. Zimmer, Milwaukee, Wis., Percy L. Julian, Jr., Madison, Wis., for appellee; Steven H. Steinglass, Patricia D. McMahon, Freedom Through Equality, Inc., Milwaukee, Wis., of counsel.
Before HASTINGS, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.
PELL, Circuit Judge.
On October 1, 1969, the Assembly, one of two houses of the Wisconsin state legislature, adopted the following resolution;
“Citing James E. Groppi for contempt of the Assembly and directing his commitment to the Dane county jail.
“In that James E. Groppi led a gathering of people on September 29, 1969, which by its presence on the floor of the Assembly during a meeting of the 1969 regular session of the Wisconsin Legislature in violation of Assembly Rule 10 prevented the Assembly from conducting public business and performing its constitutional duty; now, therefore, be it
“Resolved by the Assembly, That the Assembly finds that the above-cited action by James E. Groppi constituted ‘disorderly conduct in the immediate view of the house and directly tending to interrupt its proceedings’ and is an offense punishable as a contempt under Section 13.26(1) (b) of the Wisconsin Statutes and Article IV, Section 8 of the Wisconsin Constitution and therefore:
“(1) Finds James E. Groppi guilty of contempt of the Assembly; and
“(2) In accordance with Sections 13.26 and 13.27 of the Wisconsin Statutes, orders the imprisonment of James E. Groppi for a period of 6 months, or for the duration of the 1969 regular session, whichever is briefer, in the Dane county jail and directs the sheriff of Dane county to seize said person and deliver him to the jailer of the Dane county jail; and, be it further
“Resolved, That the Assembly directs that a copy of this resolution be transmitted to the Dane county district attorney for further action by him under Section 13.27(2) of the Wisconsin Statutes; and, be it further
“Resolved, That the attorney general is respectfully requested to represent the Assembly in any litigation arising herefrom.”
Subsequent to the adoption of the Assembly resolution, a copy was served upon Groppi and he was imprisoned in the Dane County Jail upon the authority of said resolution. Prior to being served with a copy of the resolution Groppi was given no specification of the charge against him, had no notice of any kind, nor was any hearing of any kind held. An application for a writ of habeas corpus was dismissed by the Circuit Court for Dane County and thereafter the Wisconsin Supreme Court also denied an application for a writ of habeas corpus and denied a motion for rehearing. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969).
On the same day that the Dane County Circuit Court denied Groppi’s petition, a petition for a writ of habeas corpus was filed in the United States District Court for the Western District of Wisconsin. Groppi was admitted to bail by the district court on the day the Wisconsin Supreme Court denied his petition but after he had served ten days of the sentence imposed by the Wisconsin Assembly. On April 8, 1970 the district court held that the legislature could not summarily impose jail sentence for contempt of the legislature without providing the accused with some minimal opportunity to appear and to respond to the charge. The court accordingly granted the writ of habeas corpus, dismissed the respondent Leslie’s motion to dismiss, vacated the order releasing Groppi on bail and ordered that he be released from any further custody or restraint pursuant to the resolution of the Assembly. Groppi v. Leslie, 311 F.Supp. 772 (W.D.Wis.1970).
Simultaneously a three-judge district court held constitutional that portion of the Wisconsin Statutes providing for further prosecution after the adjournment of the legislature, being § 13.27(2), Wis.Stat. Groppi v. Froehlich, 311 F.Supp. 765 (W.D.Wis.1970).
An exposition of the development of our law on the power of not only courts but legislatures to punish for contempt is to be found in both the decision of the Wisconsin Supreme Court and of the single-judge district court and no worthwhile purpose will be served by burdening this opinion with a repetition thereof. Suffice it to say that the law as it presently exists is that the legislature as well as the court has the power to punish for contempt and further that where all of the essential elements of the misconduct are under the eye of the court and are actually observed by the court, the judge has the power to impose punishment summarily. The sole issue now before us on this appeal is as stated in the brief filed on behalf of Groppi: “Should the summary power of contempt to imprison a person without a notice or hearing be extended to a legislature.”
The district court concluded “that such punishment may not be imposed by a legislature without at least providing the accused with some minimal opportunity to appear and to respond to a charge.” (311 F.Supp. at p. 777). We disagree.
Groppi contends that there is no historical precedent for the exercise of summary contempt power by the legislature. Insofar as reported court decisions are concerned the contention appears to be correct. Conversely, we have found no reported decisions holding that the legislature does not have summary contempt power. The fact of this apparent lack of authority either way suggests that instances of leading a gathering of people on to the floor of legislative halls and preventing the legislature from conducting public business are extremely rare if not virtually non-existent to this time in the United States.
Groppi further contends that our legislatures have apparently not needed summary contempt powers as they have functioned to date without that power. This assertion rather begs the question as it is not possible to tell whether they have functioned without the power if the need has not heretofore arisen for the use of the power. Whether the legislature does have the power is the issue before us. Whether legislatures in the future will have the need for summary contempt power may well be a sequela of the ultimate decision in the case before us.
We cannot be unmindful of recent relatively unprecedented illegal disruptions of the proceedings in courts in our country and this appeal, presenting, as it appears to do, a case of first impression, assumes in our judgment critically significant proportions as to the ability of deliberative legislative bodies to carry on their governmental functions.
While it might be difficult to equate with any degree of equanimity orderly governmental procedures with the effect of the conduct of Groppi as stated in the opinion of the Wisconsin Supreme Court, and while the taking of the law into one’s own hands, no matter how worthy the cause might be, is arguably an insecure basis from which to complain of swift and summary punishment, nevertheless, putting aside these considerations we determine the question here involved as a legal issue in a constitutional context. For the purposes of this appeal we are considering only the bare allegations of the Assembly resolution that Groppi led a gathering of people on the floor of the Assembly during a session thereof and prevented the Assembly from conducting a public business. It is on this factual basis we hold that the legislature may properly punish summarily for contempt.
It must also be borne in mind that we have here involved not mere words of incitation but rather deeds and acts of actual physical force.
The court below was of the opinion that the minimal requirements of procedural due process could be provided by the legislature with little delay, presumably referring to a legislative hearing. However, the invasion here involved is not of a committee or subcommitte of the legislature but of the legislative hall itself. Again, we cannot be unmindful of the protracted nature of court proceedings which involve a cause célebre: The courts, notwithstanding occasional difficulties, are essentially designed to devote the necessary time. The legislature is not. Counsel for Groppi conceded during the argument on this appeal that conceivably a full legislative hearing could cause the work of the body to grind to a halt for several weeks. We find such a contemplation intolerable on the American scene.
We agree with that part of the decision of the district court (311 F.Supp. at 780) which disagreed with the declination of the Supreme Court of Wisconsin to draw an analogy between courts and legislatures with respect to the power to punish direct contempt. If the only purpose of the summary contempt power was to remove from the legislative halls persons obstructing legislative activity, this no doubt could be ordinarily expeditiously accomplished by summoning the necessary police. The district court recognized that legislatures do impose sanctions for the purpose of punishing for a past deed, as well as for the purpose of preventing further interference with the legislative function. This is, in our opinion, as it should be. While we recognize that there is some disagreement as to the extent to which punishment is a crime deterrent, we are yet to be convinced that freedom from immediate and summary punishment would be any deterrent to proscribed activities.
In the opinion from which this appeal is taken, the district court adverted (at p. 777) to the possibility of a destruction of the parallel of the legislative situation to the court’s summary powers because of the question whether “all of the essential elements of the misconduct” occurred “under the eye of” the members who voted affirmatively October 1 and were “actually observed by those members.” In view of the fact that regularly constituted legislative sessions are frequently marked by substantially less than a full attendance on the “floor” by all members of the body, it may be arguable whether the strict standards enunciated in In re Oliver, 333 U.S. 257, 274-275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948), need be scrupulously observed or whether it may not be adequate that proceedings were disrupted for those who were in the chamber at the time, that no further proceedings could be had during the continuance of the invasion and that the resolution of punishment be adopted by at least a majority of the body as a whole irrespective of whether each individual member there personally observed the misconduct. We do not need to determine this issue. The question of fact of whether the petitioner’s acts on September 29 were observed by a specific member who voted afffirm-atively two days later was not timely presented to the state courts of Wisconsin and it would therefore appear that there had not been an exhaustion of remedies available in the courts of this state. 28 U.S.C. § 2254. Further, there is no allegation which would serve to create an issue of fact included in the petition filed in the district court. The issue appears to have been created by the district court’s opinion. We do not on this appeal deem it necessary to indulge in a presumption of non-regularity of the Assembly proceedings. United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Barry v. United States ex rel. Cunningham, 279 U.S, 597, 619, 49 S.Ct. 452, 73 L.Ed. 867 (1929).
The district court in its opinion, while expressing some skepticism (311 F.Supp. at p. 778) as to the viability, or at least desirability, of the doctrine of summary contempt power insofar as the courts are concerned, nevertheless, accepting the court situation as established law, found a basis for differentiating the factual situation presented on the one hand in the courtroom and on the other hand in the legislative chambers. Thus the court felt that the physical contours of most legislatve chambers, the comings and goings of the members and the diffusion of attention of the members among other factors would render it improbable that all the members present would share a uniform perception and evaluation of the incident as would the single judge. The court’s conclusion was that the room for error inherent in the response of a large group was so great as to require that it observe some minimal procedures before it invoked its contempt power. However, the matter is not before us on the factual basis of perceptivity of witnesses. It is before us on the basis that James E. Groppi led a gathering of people onto the floor of the Assembly and prevented the Assembly from conducting its business. The Wisconsin Supreme Court made it clear in its decision that factual matters such as erroneous per-ceptivity would be subject to review in the courts of that state. (171 N.W.2d 192 at p. 198). The court pointed out that Groppi had not sought a hearing in the Wisconsin Supreme Court or any court on the merits of the contempt issue, and that he had not offered any defense nor denied that his acts amounted to a contempt, although the court had allowed him to amend his complaint to present any matter he wished.
As a matter of fact, there is a complete absence in the record before us in the proceedings in the federal district court and in this court on appeal of any denial by Groppi of the contemptuous acts with which he was charged. The sole contention of Groppi is simply that he should not have been summarily punished for the charged contemptuous acts.
To the extent that Groppi appears to be urging a jury trial pursuant to Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), we do not find Bloom applicable here as the punishment provided for in the resolution could not in any event have exceeded six months. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), Duncan v. Louisiana, 391 U.S. 145, 162 n. 35, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
Insofar as Groppi contends that the procedure whereby he was imprisoned constitutes a bill of attainder or a bill of pains and penalties, we agree with the district court on the invalidity of this contention and adopt and approve that portion of the district court’s opinion.
The district court in its opinion also expresses the thought that unlike many courts of record, frequently, if not typically, no verbatim written record of legislative proceedings exists. Acts of violent disruption, such as those which have occurred recently in the state courts of California, would seem scarcely to lend themselves to a reporter’s transcript any better than would the acts charged against Groppi in the resolution of the Wisconsin Assembly. In any event, a question of what happened factually and whether it is to be determined from a court reporter’s transcript or from the mouths of eye witnesses is one which is not determinative of the issue before us. The proof of what happened in the legislative halls will be the same whether the legislature has to have a hearing prior to punishment or whether the hearing is in a court for a review of a claim of lack of factual basis for the punishment.
We share the laudable concern of the district court for the full protection of procedural rights guaranteed to the individual by the due process clause of the Fourteenth Amendment. In essence, however, we have in the case before us a situation in which we must balance claimed constitutional procedural rights of the individual citizen against the welfare of the citizenry as a whole. We find the scales weighted in favor of the citizenry. In so doing we do not feel we are adopting an alarmist view in recognizing validity in the respondent’s position that protracted and frequent legislative trials, if necessary, could easily and realistically become a favorite tool in the politics of confrontation and obstruction, and .representative government (whatever its present faults) would go down to defeat.
We reach with some reluctance toy decision which appears even remotely to achieve an eroding effect on basic civil liberties as guaranteed by our constitution; but believing, as we do, that illegal and physically forcible interference with properly functioning governmental institutions would pose the real risk of being eventually accompanied by the abolition, rather than the erosion, of the individual constitutional liberties, we are unable to reach any other result in the case before us.
For the reasons hereinbefore indicated, the judgment of the district court is reversed, the petition for habeas corpus is hereby denied and respondent-appel lant’s motion to dismiss is hereby grant ed.
Reversed.
. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969) ; and Groppi v. Leslie, 311 F.Supp. 772 (W.D.Wis. 1970).
. “On September 29, 1969, during a regular meeting of the Assembly just prior to the commencement of a special session called by the governor, James E. Groppi led a crowd of noisy protesters into the state capítol building and proceeded to ‘take over’ the Assembly chamber to protest his disagreement with cuts in the state budget for certain welfare programs. The Assembly was unable to proceed with its legislative duties. We take judicial notice that Groppi publicly stated in the Assembly to bis cheering supporters, in effect, that they had captured the capítol and intended to stay until they got what they wanted, and that Groppi vowed from the speaker’s stand in the Assembly to remain there until the legislature restored funds for welfare recipients. The occupation of the Assembly by Groppi and the protesters lasted from approximately midday to well toward midnight.” State ex rel. Groppi v. Leslie, 44 Wis.2d 282, * * *, 171 N.W.2d 192, 194 (1969).
. 44 Wis.2d at 296, 171 N.W.2d at 198.
. “[F]or a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to he heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but * * * the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct.”
Question: What is the second general issue in the case, other than criminal - state offense - other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)?
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_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
ALCOM ELECTRONIC EXCHANGE, INC., etc., et al., Plaintiffs-Appellants, v. John BURGESS, etc., et al., Defendants-Appellees.
No. 88-4013
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 19, 1988.
Ben F. Galloway, Gulfport, Miss., for plaintiffs-appellants.
Henry Laird, W. Joel Blass, Gulfport, Miss., Lawrence J. Franck, Jackson, Miss., for defendants-appellees.
Before REAVLEY, KING and GARWOOD, Circuit Judges.
REAVLEY, Circuit Judge:
Alcom Electronic Exchange, Inc. (“Al-com”) appeals from the district court’s order dismissing its complaint. We affirm.
I.
Alcom, a Mississippi Corporation, sued John Burgess, a citizen of Mississippi, Bell-south Advertising and Publishing Corporation (“BellSouth”), a Georgia corporation, and South Central Bell Telephone Company (“South Central Bell”), a Georgia corporation (collectively the “defendants”), for the defendants’ failure to place an Alcom advertisement in the Yellow Pages of South Central Bell’s 1986 Gulf Coast Directory pursuant to a written contract between Al-com and BellSouth. BellSouth publishes telephone directories for South Central Bell. Burgess, acting as agent for Bell-south, entered a written contract with Al-com which provided for the publication of an Alcom business advertisement in South Central Bell’s 1986 Gulf Coast Directory. That contract contained a provision, applicable to BellSouth, Burgess and South Central Bell, which limited damages, on account of omissions and errors in advertising, to an abatement of any charges paid by Alcom for the advertisement.
The advertisement sought by Alcom was omitted from the 1986 telephone directory. Alcom, seeking an order directing the defendants to include its advertisement in a supplement to the 1986 directory and $250,-000 in compensatory and punitive damages, brought this action in a Mississippi state court. The defendants, pursuant to 28 U.S.C. 1441(b), obtained removal to federal court on the basis of diversity jurisdiction. Alcom moved to remand this action to state court, contending that, because Alcom and Burgess were both citizens of Mississippi, diversity jurisdiction did not exist. The district court denied this motion, holding that Alcom could not possibly establish a cause of action under its pleadings against Burgess in state court and, therefore, that Burgess was not a proper party to the suit.
The defendants then filed a motion for summary judgment asserting that the limitation of liability clause contained in the contract limited Alcorn’s recoverable damages to $15, the amount Alcom paid for the advertisement. The district court, in an interlocutory order dated November 23, 1987, held that Alcorn’s recovery, under Mississippi law, was limited to the $15 it paid to the defendants for the advertisement. However, the court went on to say that
technically the issue of whether South Central Bell is liable to Plaintiffs’ for the fifteen dollar ($15.00) sum remains for resolution. The parties have reached no agreement as to the liability for that amount on the record of this Court. Accordingly, this issue clearly constitutes a genuine issue of material fact. Defendants’ motion, to the extent that it seeks dismissal of this cause must be denied.
On January 4, 1988, the defendants tendered into the registry of the court the sum of $15 pursuant to the district court’s November 23, 1987 order. Alcom filed a notice of appeal on January 8, 1988, stating that “[a]n appeal is proper ... as the Defendants have tendered into the Registry of the Court the disputed sum referenced in the District Court’s Judgment.” Thereafter, on May 6, 1988, the court filed an order entitled “Order Nunc Pro Tunc” in which it directed the clerk of the court to pay Alcom the sum of $15 tendered into the registry by the defendants and dismissed Alcorn’s complaint with prejudice. Alcom did not file a notice of appeal from this order.
Alcom now contends that the district court improperly denied its motion to remand this action to state court, or, alternatively, that the limitation of liability clause contained in the contract was unenforceable under Mississippi law. We must first, however, consider the timeliness of Alcorn’s notice of appeal, a question that goes to our jurisdiction.
II. Appellate Jurisdiction
Our jurisdiction depends upon a timely filed notice of appeal. We have here the entry of an interlocutory and unappealable order on November 23, a notice of appeal on January 8, and a final judgment on May 6. Because the November 23 order does not purport to dispose of the lawsuit we cannot treat it as the announcement of what the court entered on May 6. May the January 8 notice of appeal be accepted as effective upon the entry of the May 6 judgment? If this were an open question, we might follow the majority view and hold the notice of appeal ineffective under Rule 4, Fed.R.App.P. We are bound by a contrary decision by a prior Fifth Circuit panel, however, and must uphold the notice as effective.
The rules governing appellate procedure in civil cases provide that a “notice of appeal ... shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from.” Fed.R.App.P. 4(a)(1) (emphasis added). However, Rule 4(a)(2), Fed.R.App.P., provides that “[ejxcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof” (emphasis added). The purpose of Rule 4(a)(2) “is to avoid the harsh result that may obtain when a district court has announced its final judgment and zealous counsel in his haste to file a notice of appeal does so before the district court formally enters the order containing its judgment.” General Television Arts, Inc., v. Southern Ry., 725 F.2d 1327, 1330 (11th Cir.1984). Rule 4(a)(4), Fed.R.App.P., provides that if certain post-judgment or post-trial motions are made, the time for filing a notice of appeal runs from the entry of the order granting or denying such motions and that “[a] notice of appeal filed before the disposition of [such] motions shall have no effect.”
The district court entered a final judgment on May 6, 1988. While the court entitled this judgment “Order Nunc Pro Tunc” and may have intended to make it effective within the 30 days prior to Al-corn’s notice of appeal, see Wheeler v. American Home Prods., Corp., 582 F.2d 891, 893 (5th Cir.1977), the terms of the order are silent as to the date of its effectiveness. We can only give it the effective date of its entry on May 6. Alcorn filed no notice of appeal from that judgment.
Neither party filed post-judgment motions, thus rendering Fed.R.App.P. 4(a)(4), on its face, inapplicable. Alcorn’s notice of appeal was filed before either the announcement or entry of final judgment (the “Order Nunc Pro Tunc”), and was thus premature.
The majority of federal appellate courts which have considered the validity of a premature notice of appeal have concluded that such notice does not satisfy the condition in Rule 4(a)(2) for postponing the notice’s effective date because that Rule, on its face, only confers jurisdiction upon a court of appeals if the notice is filed after the announcement of judgment but before the entry of the order. See United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986); General Television Arts, 725 F.2d at 1330-31. Other courts, however, relying on Fed.R.App.P. 4(a)(4), have held that a notice of appeal filed before the announcement of a final judgment is valid where no post-judgment or post-trial motions, as set forth in Rule 4(a)(4), have been filed. See Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983). The court in Cape May Greene drew a negative inference from Rule 4(a)(4), holding that “the Rules contemplate that the prohibition against giving effect to premature notices of appeal shall be confined to the specific instances cited in Rule 4(a)(4).” Id. at 185. Adopting the majority position, this reasoning was rejected by Hansen, in which the court stated:
Rule 4(a)(2) defines the circumstances in which a premature notice of appeal can be effective, and the circumstances of this case are not among them. To disregard the limitations in the rule would be to rewrite it rather too boldly for our tastes. The reference to prematurity in Rule 4(a)(4) has no negative implications. The reference is necessary to take care of the case where no subsequent judgment is entered — where all that happens is that a motion to alter the judgment is denied — so that one might have thought the original notice of appeal would still be good, nothing having happened to alter the judgment from which it was taken. Rule 4(a)(4) makes clear that the original notice of appeal has lapsed and a new one must be filed. The present case is not one to which Rule 4(a)(4) is addressed; in this case, the notice of appeal was filed before a final judgment was either announced or entered, and there could be no reason to think the notice would do service for an appeal from the final judgment.
795 F.2d at 38.
This panel might follow the reasoning set forth in Hansen, if we were not bound by a prior panel decision which expressly adopted the position set forth in Cape May Greene. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984). This court in Alcorn primarily relied on an earlier panel decision, Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), which held that we had jurisdiction to consider a premature appeal, and declined to follow a later contrary panel decision, United States v. Taylor, 632 F.2d 530 (5th Cir.1980), which, relying on Fed.R.App.P. 4(a), held that a final judgment does not retroactively validate a premature notice of appeal. In Alcorn, we noted that the Jeteo rule had been followed in this circuit, see Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1163-65 (5th Cir.1980), and, reasoning that where precedents conflict the older rule is presumptively correct, we rejected the contrary rule set forth in Tay lor. Alcorn, 731 F.2d at 1166 ("The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit.”). We then expressly adopted the position set forth in Cape May Greene, stating that “[w]e join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4).” Alcorn, 731 F.2d at 1166.
There are difficulties with our reliance upon Jeteo. While Jeteo was decided in 1973, Rule 4(a)(2), Fed.R.App.P., was enacted in 1979. It is the 1979 rule that governs and presents the problem. Looking at the terms of that rule, it provides for the postponement of a premature notice’s effective date only where that notice is filed after announcement of final judgment but before entry of that judgment. Rule 4(a)(4), Fed.R.App.P., renders Rule 4(a)(2) ineffective where certain motions have been filed, but reflects no intent to broaden the effect of Rule 4(a)(2) beyond its express terms. Such an interpretation would render Rule 4(a)(2) virtually superfluous since the purpose served by that Rule would also be fulfilled by Rule 4(a)(4).
This court in Alcom, however, addressed both Jeteo and Taylor, and decided to follow the rule set forth in Jeteo and Cape May Greene. Because we are bound by the panel’s decision in Alcom, we must also reject the Taylor rule and follow Jet-eo. Accordingly, we hold that the premature notice of appeal filed by Alcom on January 8, 1988, was effective.
III. Diversity Jurisdiction
After removal from state court, Alcom moved to remand this action, contending that diversity jurisdiction did not exist because both Alcom and Burgess were citizens of Mississippi. See 28 U.S.C. § 1441(b). The defendants contended that Burgess was fraudulently joined, and was thus not a proper party to the suit. The district court, after noting that, in order to establish that Burgess had been fraudulently joined, the defendants had to show that there was “no possibility” that Alcom would be able to establish a cause of action against Burgess in a Mississippi court, see Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), held that, under Mississippi law, Alcom could not successfully assert any claim against Burgess. The court held that Alcom averred only a breach of contract and no more than a contractual claim. As to the viability of Alcorn’s contract claim, the court relied on the well-settled principle of Mississippi law “that an authorized agent acting for a disclosed principal, in the absence of circumstances showing that personal responsibility was intended to be incurred, may not be held personally liable to the other contracting party.” Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F.Supp. 1176, 1199 (N.D.Miss.1970).
Alcom now contends that Burgess failed to disclose his principal, the L.M. Berry Company (his employer), and thus that Burgess is liable for breach of contract under Mississippi law. See 3 C.J.S. Agency § 369 (1973) (failure of an agent to disclose his principal will render such agent liable for a breach of duty).
BellSouth contracted with South Central Bell to publish the Yellow Pages Directory, and BellSouth in turn engaged Berry to solicit and sell advertising. Through Burgess, Alcom contracted with BellSouth and South Central Bell, and Al-com knew at that time that Burgess was acting as an agent for these companies. Alcorn’s pleadings allege that Burgess acted at all times as an agent of BellSouth. The fact that Alcom did not know that Burgess was an employee of Berry is irrelevant because Alcom knew the identity of the principals on whose behalf Burgess was acting. We reject Alcorn’s claim that under Mississippi law it would have had a contract action against Burgess, and hold that the district court correctly denied Al-corn’s motion to remand.
IV. The Merits: Limitation of Liability
The case turns on the validity of the provision in the contract limiting the defendants’ liability, in the event of an error or omission in advertising, to an abatement of any charges paid by Alcom for the advertisement. The district court held that, under Mississippi law, limitation of liability clauses are valid and enforceable and therefore that Alcorn’s recovery was limited to the $15 amount it paid to the defendants for the advertisement.
Alcorn argues that the Mississippi Supreme Court has not yet decided whether a limitation of liability clause is enforceable when the parties to the contract are in an unequal bargaining position, and, after citing an Alabama Supreme Court case which invalidated a similar clause, Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107 (Ala.1985), requests that we either reverse the district court’s judgment and hold that such clauses are not enforceable, or certify this issue to the Mississippi Supreme Court.
It is well settled under Mississippi law that parties to a contract may stipulate, in advance, the amount to be paid as compensation for loss or injury which may result in the event of a breach, and that such stipulated sum is enforceable provided it is not in the nature of a penalty. See Patrick Petroleum Corp. of Mich. v. Callon Petroleum Co., 531 F.2d 1312, 1315-17 (5th Cir.1976) (citing Mississippi cases). Many states have upheld the validity of limitation of liability clauses in directory advertising contracts, see, e.g., Louisiana Shoes, Inc. v. South Cent. Bell Tel. Co., 445 So.2d 1304 (La.App.1984); Louisville Bear Safety Serv., Inc. v. South Cent. Bell Tel. Co., 571 S.W.2d 438 (Ky.App.1978); Warner v. Southwestern Bell Tel. Co., 428 S.W.2d 596 (Mo.1968); Smith v. Southern Bell Tel. & Telegraph Co., 51 Tenn.App. 146, 364 S.W.2d 952 (1962), and at least two federal district courts in Mississippi have upheld such clauses, Goodson v. South Cent. Bell Tel. Co., Civil Action No. S84-0686(N) (S.D.Miss. January 29,1986); Feldman v. South Cent. Bell Tel. Co., Civil Action No. J82-0582(B) (S.D.Miss. March 27, 1984). We give deference to the decision of the district judge and hold that the limitation of liability clause contained in Alcorn’s contract is enforceable under Mississippi law.
AFFIRMED.
. The 11th Circuit in Robinson v. Tanner, 798 F.2d 1378 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987), attempted to reconcile our decisions in Jeteo and Taylor. The court noted that “Jeteo and most of the cases following its rule concern premature appeals from judgments adjudicating either fewer than all the claims in the case or the rights and liabilities of fewer than all the parties,” and thus that these cases involve judgments which could be certified for appeal under Fed.R.Civ.P. 54(b). 798 F.2d at 1382-83. The court then stated that “Taylor, on the other hand, applies to interlocutory orders which could not be appealed under Rule 54(b) as dismissals of claims or parties." Id. at 1383. The court concluded that Jeteo stands for the proposition that “[a] premature notice of appeal is valid if filed from an order dismissing a claim or party and followed by a subsequent final judgment without a new notice of appeal being filed," while Taylor stands for the proposition that “[a] premature notice of appeal filed from an interlocutory order that is not immediately appealable is not cured by a subsequent final judgment.” Id. at 1385.
The notice of appeal in Taylor was filed sifter the defendant’s counterclaim was dismissed, but before the plaintiffs original cause of action was dismissed. Taylor, 632 F.2d at 531. Rule 54(b), Fed.R.Civ.P., applies to actions involving more than one claim, including counterclaims. Because the district court in Taylor, under Rule 54(b), could have certified an appeal of its dismissal of defendant’s counterclaim, we fail to understand the distinction, drawn by the court in Robinson, between Taylor and Jeteo. In any event, Fed.R.App.P. 4(a)(2) invalidates all appeals taken before announcement of judgment and makes no mention of Fed.R.Civ.P. 54(b).
. In 1973, when Jeteo was decided, Rule 4(a), Fed.R.App.P., provided:
(a) Appeals in Civil Cases. In a civil case (including a civil action which involves an admiralty or maritime claim and a proceeding in bankruptcy or a controversy arising therein) in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. A judgment or order is entered within the meaning of this subdivision when it is entered in the civil docket.
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
It is seen that the earlier civil case rule required a notice of appeal "within 30 days of’ the order. It did not require that the notice be filed "within 30 days after" the order as the 1979 rule does. There was no express provision for the premature notice after announcement. That is 4(a)(2), enacted in 1979. By that addition the older provision in Rule 4(b), applicable to criminal cases, was extended to civil cases. See Notes of Advisory Committee on Appellate Rules following Fed.R.App.P. 4.
.This section provides:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b) (emphasis added).
. Alcom also contends that this case was not removable under 28 U.S.C. § 1441(c), because it does not involve separate and independent claims. This contention is simply irrelevant because this action was removed pursuant to 28 U.S.C. § 1441(b), and not § 1441(c).
. This clause specified that:
[BELLSOUTH’S] LIABILITY, THE LIABILITY OF ITS AUTHORIZED SALES REPRESENTATIVES [BERRY AND BURGESS] AND THE LIABILITY OF THE TELEPHONE COMPANY [SOUTH CENTRAL BELL] (IF ANY) ON ACCOUNT OF OMISSION OF OR ERRORS IN SUCH ADVERTISING SHALL IN NO EVENT EXCEED THE AMOUNT OF CHARGES FOR THE ADVERTISING WHICH WAS OMITTED OR IN WHICH THE ERROR OCCURRED IN THE THEN CURRENT DIRECTORY ISSUE AND SUCH LIABILITY SHALL BE DISCHARGED BY ABATEMENT OF THE CHARGES FOR THE PARTICULAR LISTING OR ADVERTISING IN WHICH THE OMISSION OR ERROR OCCURRED, (emphasis in original)
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_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.
A. L. WHEELER, Appellant v. Helen Leary McCAULEY, Appellee.
No. 15441.
United States Court of Appeals District of Columbia Circuit.
Argued March 9, 1960.
Decided May 19, 1960.
Mr. Emory N. Ellis, Jr., Washington, D. C., for appellant.
Mr. Samuel Herman, Washington, D. C., of the bar of the United States District Court for the District of Columbia, pro hac vice, by special leave of court, with whom Mr. George Jovanovich, Washington, D. C., was on the brief, for appellee.
Before Fahy, Washington and Dan-aher, Circuit Judges.
PER CURIAM.
This case involves real estate situated' in the Georgetown section of the District of Columbia. In constructing a new house, appellant Wheeler built a brick wall, resting it partly on his own land and partly on appellee McCauley’s adjoining land. Appellee promptly protested, and brought suit alleging trespass and seeking an injunction, removal of the wall, and damages, because it interfered with her use of an entranceway to her home. The court declined to order the wall removed, finding that appellant had acted in good faith, but assessed damages for trespass at $1,250.00. This appeal followed.
Appellant’s main contention is that he was merely raising the height of an existing party wall between the two properties. The trial court rejected this contention, concluding that certain existing construction which appellee Mc-Cauley had erected was a curtain wall, “a wall for the purpose of protecting the view,” and hence not a party wall. We find no basis in the record for saying that this conclusion was factually or legally erroneous. “It is manifest that not every sort of construction projecting over the boundary, although it may form part of the exterior wall of a building, can be called a party wall.” Smoot v. Heyl, 1913, 227 U.S. 518 at page 523, 33 S.Ct. 336, at page 337, 57 L.Ed. 621.
Here the construction which appellee McCauley had erected, and which appellant would describe as an existing party wall, was not even part of the exterior wall of the McCauley building. It was an entraneeway — a number of brick steps leading down to the McCauley basement — protected by a four-inch thick brick wall which ran up one side of the steps, largely for aesthetic purposes, and providing no direct benefit to the adjoining (Wheeler) land. This curtain wall was not converted into a party wall simply by reason of the fact that it was located on the adjoining land which Wheeler now owns, and that its foundations were partly on the McCauley land and partly on the Wheeler land. The entranceway and curtain wall were built for appellee McCauley’s sole benefit, and were not intended for or capable of “common use” and “mutual benefit,” as a party wall is. Smoot v. Heyl, supra 227 U.S. at page 523, 33 S.Ct. at page 337. She had built them with the consent of Wheeler’s predecessor in title, and they were in existence when Wheeler bought his land.
Appellant Wheeler destroyed the curtain wall just described, and replaced it with a brick wall of considerable thickness and height, forming one exterior wall of his house. In so doing, he built on the McCauley land to a width of four inches, resting his wall on the McCauley steps to that extent, and thus reducing their original width of 28% inches to a scanty 24% inches. The trial judge found, after inspecting the premises, that this rendered the entranceway substantially less useful and usable. The trial judge also found, correctly we think, that Wheeler’s construction of the wall was done without Mrs. McCauley’s consent. Cf. Fowler v. Koehler, 1915, 43 App.D.C. 349, 358-359; Walker v. Gish, 1923, 260 U.S. 447, 451, 43 S.Ct. 174, 67 L.Ed. 344. The award of damages is not in an unreasonable amount, and we perceive no valid reason for setting it aside. Cf. Fowler v. Saks, 1890, 7 Mackey 570, 578-581, 18 D.C. 570, 578, 581, 7 L.R.A. 649.
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:
|
sc_petitionerstate
|
43
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CAMRETA v. GREENE, personally and as next friend of S. G., a minor, et al.
No. 09-1454.
Argued March 1,2011 —
Decided May 26, 2011
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scaua, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 714. Sotomayor, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 714. Kennedy, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 716.
John R. Kroger, Attorney General of Oregon, argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 09-1454 were Mary H. Williams, Solicitor General, and Anna Joyce, Deputy Solicitor General. Christopher Dennis Bell and Steven Edward Griffin filed briefs for petitioner in No. 09-1478.
Acting Principal Deputy Solicitor General Kruger argued the cause for the United States as amicus curiae in support of petitioners. With her on the brief were Acting Solicitor General Katyal, Assistant Attorneys General West and Breuer, Acting Deputy Solicitor General Mcheese, Eric J. Feigin, Thomas M. Bondy, Sushma Soni, and John M. Pellettieri.
Carolyn A. Kubitschek argued the cause for respondents in both cases. With her on the brief were David J. hansner, Carolyn Shapiro, Mikel R. Miller, and Robert E. hehrer
Together with No. 09-1478, Alford, Deputy Sheriff, Deschutes County, Oregon v. Greene, Personally and as Next Friend of S. G., a Minor, et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both eases were filed for the State of Arizona et al. by Terry Goddard, Attorney General of Arizona, Paula S. Bickett, Chief Counsel, and Kathleen P. Sweeney, Dawn R. Williams, and Michelle R. Nimmo, Assistant Attorneys General, by Richard A. Svobodny, Acting Attorney General of Alaska, and Russell A Suzuki, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Troy King of Alabama, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Peter J. Nickles of the District of Columbia, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Steve Six of Kansas; Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, Janet T. Mills of Maine, Douglas F. Gansler of Maryland, Michael A Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Steve Bullock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Michael A. Delaney of New Hampshire, Paula T. Dow of New Jersey, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A Salzburg of Wyoming; for the Center on the Administration of Criminal Law by Michael Y. Scudder, Jr., and Anthony S. Barkow; for the Cook County Public Guardian by Kass A Plain; and for the National Association of Social Workers et al. by Mary M. Calkins, George E. Quillin, and Carolyn 1. Polowy.
Briefs of amici curiae urging affirmance in both eases were filed for the American Family Rights Association et al. by Christopher Landau; for the Center for Law and Education et al. by Linda T. Coberly and Gene C. Schaerr; for the Eagle Forum Education & Legal Defense Fund, Inc., by Lawrence J. Joseph; for the Family Defense Center by Diane L. Redleaf; for the Juvenile Law Center et al. by Marsha Levick and Lourdes Rosado; for the Legal Aid Society, Juvenile Rights Practice, by Steven Banks and Gary Solomon; for the Loyola Civitas Childlaw Center et al. by Bruce A. Boyer; for the National Association of Criminal Defense Lawyers et al. by Mark R. Brown and David M. Porter; for the New York University School of Law Family Defense Clinic et al. by Charles L. Kerr, Martin Guggenheim, and Susan Jacobs; for the Pacific Justice Institute et al. by Dennis B. Atchley, Donnie R. Cox, David J. Beauvais, Shawn A McMillan, and Paul W. Leehey; and for the Society of Catholic Social Scientists by Stephen M. Krason.
Briefs of amici curiae were filed in both cases for the Battered Women’s Resource Center et al. by Lauren E. Handel and Malinda Morain; for the California State Association of Counties et al. by Gary C. Seiser and John E. B. Myers; for the Center for Individual Rights by Michael E. Rosman; for the Children’s Advocacy Institute by Robert C. Fellmeth and Julianne D’Angelo Fellmeth; for the Children’s Law Section of the State Bar of Michigan by Elizabeth S. Warner; for the District Attorneys of San Diego County et al. by Sophia G. Roach; for the Family Research Council et al. by David Austin R. Nimocks; for Legal Services for Children by John A. Basinger, Michael Atkins, and Angela C. Vigil; for Liberty Counsel by Mathew D. Staver, Anita L. Staver, Stephen M. Crampton, and Mary E. McAlister; for the National School Boards Association et al. by Francisco M. Negrón, Jr., Matthew W. Wright, and David K. Pauole; and for The Rutherford Institute by John W. Whitehead.
Mr. Cooley, pro se, Irene T. Wakabayashi, Phyllis C. Asayama, and Cassandra Hart filed a brief for Los Angeles County District Attorney Steve Cooley et al. in No. 09-1478.
Justice Kagan
delivered the opinion of the Court.
Almost a decade ago, a state child protective services worker and a county deputy sheriff interviewed a girl at her elementary school in Oregon about allegations that her father had sexually abused her. The girl’s mother subsequently sued the government officials on the child’s behalf for damages under Rev. Stat. § 1979,42 U. S. C. § 1983, claiming that the interview infringed the Fourth Amendment. The United States Court of Appeals for the Ninth Circuit agreed, ruling that the officials had violated the Constitution by failing to obtain a warrant to conduct the interview. But the Court of Appeals further held that qualified immunity shielded the officials from monetary liability because the constitutional right at issue was not clearly established under existing law.
The two officials sought this Court’s review of the Ninth Circuit’s ruling on the Fourth Amendment. We granted their petitions to examine two questions. First, may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution? And second, if we may consider cases in this procedural posture, did the Ninth Circuit correctly determine that this interview breached the Fourth Amendment?
We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue. We therefore do not reach the Fourth Amendment question in this case. In line with our normal practice when mootness frustrates a party’s right to appeal, see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), we vacate the part of the Ninth Circuit’s opinion that decided the Fourth Amendment issue.
I
In February 2003, police arrested Nimrod Greene for suspected sexual abuse of a young boy unrelated to him. During the investigation of that offense, the boy’s parents told police that they suspected Greene of molesting his 9-year-old daughter S. G. The police reported this information to the Oregon Department of Human Services, which assigned petitioner Bob Camreta, a child protective services caseworker, to assess S. G.’s safety. Several days later, Camreta, accompanied by petitioner James Alford, a Deschutes County deputy sheriff, went to S. G.’s elementary school and interviewed her about the allegations. Camreta and Alford did not have a warrant, nor had they obtained parental consent to conduct the interview. Although S. G. at first denied that her father had molested her, she eventually stated that she had been abused. Greene was indicted and stood trial for sexually abusing S. G., but the jury failed to reach a verdict and the charges were later dismissed.
Respondent Sarah Greene, S. G.’s mother, subsequently sued Camreta and Alford on S. G.’s behalf for damages under 42 U. S. C. § 1983, which authorizes suits against state officials for violations of constitutional rights. S. G. alleged that the officials’ in-school interview had breached the Fourth Amendment’s proscription on unreasonable seizures.
The District Court granted summary judgment to Camreta and Alford, and the Ninth Circuit affirmed. The Court of Appeals first ruled that the interview violated S. G.’s rights because Camreta and Alford had “seize[d] and interrogate[d] S. G. in the absence of a warrant, a court order, exigent circumstances, or parental consent.” 588 F. 3d 1011, 1030 (2009) (footnote omitted). But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. Id., at 1031-1033.
The Ninth Circuit explained why it had ehosen to rule on the merits of the constitutional claim, rather than merely hold that the officials were immune from suit. By addressing the legality of the interview, the court said, it could “provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” Id., at 1022. That guidance came in no uncertain terms: “[G]overnment officials investigating allegations of child abuse,” the court warned, “should cease operating on the assumption that a ‘special need’ automatically justifies dispensing with traditional Fourth Amendment protections in this context.” Id., at 1033.
Although the judgment entered was in their favor, Camreta and Alford petitioned this Court to review the Ninth Circuit’s ruling that their conduct violated the Fourth Amendment. S. G. declined to cross-petition for review of the decision that the officials have immunity. We granted certiorari. 562 U. S. 960 (2010).
II
We first consider our ability to act on a petition brought by government officials who have won final judgment on grounds of qualified immunity, but who object to an appellate court’s ruling that they violated the plaintiff’s constitutional rights. Camreta and Alford are, without doubt, prevailing parties. The Ninth Circuit’s decision shielded them from monetary liability, and S. G. chose not to contest that ruling. So whatever else follows, they will not have to pay S. G. the damages she sought. The question we confront is whether we may nonetheless review the Court of Appeals’ holding that the officials violated the Constitution.
The statute governing this Court’s jurisdiction authorizes us to adjudicate a case in this posture, and S. G. does not contend otherwise. The relevant provision confers unqualified power on this Court to grant certiorari “upon the petition of any party.” 28 U. S. C. § 1254(1) (emphasis added). That language covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 87 (9th ed. 2007) (hereinafter Stern & Gressman).
S. G., however, alleges two impediments to our exercise of statutory authority here, one constitutional and the other prudential. First, she claims that Article III bars review because petitions submitted by immunized officials present no case or controversy. See Brief for Respondent 31-39. Second, she argues that our settled practice of declining to hear appeals by prevailing parties should apply with full force when officials have obtained immunity. ’ See id., at 24-27. We disagree on both counts.
A
Article III of the Constitution grants this Court authority to adjudicate legal disputes only in the context of “Cases” or “Controversies.” To enforce this limitation, we demand that litigants demonstrate a “personal stake” in the suit. Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009) (internal quotation marks omitted); see also United States Parole Comm’n v. Geraghty, 445 U. S. 388, 395-397 (1980). The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct complained of” and that “will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992) (internal quotation marks omitted). And the opposing party also must have an ongoing interest in the dispute, so that the case features “that concrete adverseness which sharpens the presentation of issues.” Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) (internal quotation marks omitted). To ensure a case remains “fit for federal-court adjudication,” the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997).
We have previously recognized that an appeal brought by a prevailing party may satisfy Article Ill’s case-or-controversy requirement. See Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 332-336 (1980). Indeed, we have twice before allowed a party for whom judgment was entered to challenge an unfavorable lower court ruling. See ibid.; Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). In that context as in others, we stated, the critical question under Article III is whether the litigant retains the necessary personal stake in the appeal. Deposit Guaranty, 445 U. S., at 334. As we will explain, a court will usually invoke rules of “federal appellate practice” to decline review of a prevailing party's challenge even when he has the requisite stake. Id., at 333; see infra, at 703-704. But in such a case, Article III is not what poses the bar; these rules of practice “d[o] not have [their] source in the jurisdictional limitations” of the Constitution. Deposit Guaranty, 445 U. S., at 333-334. So long as the litigants possess the personal stake discussed above, an appeal presents a case or controversy, no matter that the appealing party was the prevailing party below.
This Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials' behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally hable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Cf. id., at 337-338 (discussing prevailing party’s stake in a ruling’s prospective effects). Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability. And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. See Erie v. Pap’s A. M., 529 U. S. 277, 287-289 (2000); Honig v. Doe, 484 U. S. 305, 318-323 (1988); cf. Lyons, 461 U. S., at 111 (examining whether the plaintiff had shown “a sufficient likelihood that he will again be wronged in a similar way”). Only if the ruling remains good law will she have ongoing protection from the practice.
We therefore reject S. G.’s view that Article III bars us from adjudicating any and all challenges brought by government officials who have received immunity below. That the victor has filed the appeal does not deprive us of jurisdiction. The parties in such eases may yet have a sufficient “interest in the outcome of [a litigated] issue” to present a case or controversy. Deposit Guaranty, 445 U. S., at 336, n. 7.
B
Article III aside, an important question of judicial policy remains. As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so. See, e. g., Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, 390, n. 5 (1970); New York Telephone Co. v. Maltbie, 291 U. S. 645, 646 (1934) (per curiam); see also Bunting v. Mellen, 541 U. S. 1019, 1023 (2004) (Scalia, J., dissenting from denial of certiorari) (“[0]ur practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed” (quoting Stern & Gressman 79 (8th ed. 2002))). Our resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor. See California v. Rooney, 483 U. S. 307, 311 (1987) (per curiam) (“[Tjhat the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate... for the prevailing party to request us to review it”). We therefore have adhered with some rigor to the principle that “[tjhis Court reviews judgments, not statements in opinions.” Ibid, (internal quotation marks omitted). On the few occasions when we have departed from that principle, we have pointed to a “policy reaso[n]... of sufficient importance to allow an appeal” by the winner below. Deposit Guaranty, 445 U. S., at 336, n. 7.
We think just such a reason places qualified immunity eases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.” Rooney, 483 U. S., at 311 (internal quotation marks omitted); see Bunting, 541 U. S., at 1023 (Scalia, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect on the conduct of public officials — both the prevailing parties and their co-workers — and the policies of the government units to which they belong. See supra, at 702-703. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity — and observance — of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials’ petitions.
To begin, then, with the nature of these suits: Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U. S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). That means a court can often avoid ruling on the plaintiff’s claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit.
And indeed, our usual adjudicatory rules suggest that a court should forbear resolving this issue. After all, a “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 445 (1988); see also Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring). In this category of qualified immunity cases, a court can enter judgment without ever ruling on the (perhaps difficult) constitutional claim the plaintiff has raised. Small wonder, then, that a court might leave that issue for another day.
But we have long recognized that this day may never come — that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo. County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court both awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive. Courts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements. See, e. g., ibid,.; Wilson v. Layne, 526 U. S. 603, 609 (1999). Qualified immunity thus may frustrate “the development of constitutional precedent” and the promotion of law-abiding behavior. Pearson v. Callahan, 555 U. S. 223, 237 (2009).
For this reason, we have permitted lower courts to avoid avoidance — that is, to determine whether a right exists before examining whether it was clearly established. See, e. g., ibid.; Lewis, 523 U. S., at 841, n. 5. Indeed, for some time we required courts considering qualified immunity claims to first address the constitutional question, so as to promote “the law's elaboration from case to case.” Saucier v. Katz, 533 U. S. 194, 201 (2001). More recently, we have left this matter to the discretion of lower courts, and indeed detailed a range of circumstances in which courts should address only the immunity question. See Pearson, 555 U. S., at 236-242. In general, courts should think hard, and then think hard again, before turning small eases into large ones. But it remains true that following the two-step sequence— defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials. Id., at 236; see id., at 236-242 (discussing factors courts should consider in making this determination).
Here, the Court of Appeals followed exactly this two-step process, for exactly the reasons we have said may in select circumstances make it “advantageous.” Id., at 242. The court, as noted earlier, explained that it was “addressing] both prongs of the qualified immunity inquiry... to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” 588 F. 3d, at 1022. To that end, the court adopted constitutional standards to govern all in-school interviews of suspected child abuse victims. See id., at 1030. And the court specifically instructed government officials to follow those standards going forward — to “cease operating on the assumption” that warrantless interviews are permitted. See id., at 1033. With the law thus clearly established, officials who conduct this kind of interview will not receive immunity in the Ninth Circuit. And the State of Oregon has done just what we would expect in the wake of the court's decision: It has provided revised legal advice, consonant with the Ninth Circuit’s ruling, to child protective services workers wishing to interview children in schools. See Tr. of Oral Arg. 14. The court thus accomplished what it set out to do: settle a question of constitutional law and thereby guide the conduct of officials.
Given its purpose and effect, such a decision is reviewable in this Court at the behest of an immunized official. No mere dictum, a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior. If our usual rule pertaining to prevailing parties applied, the official would “fac[e] an unenviable choice”: He must either acquiesce in a ruling he had no opportunity to contest in this Court, or “defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages.” Pearson, 555 U. S., at 240-241 (internal quotation marks and brackets omitted). And if our usual bar on review applied, it would undermine the very purpose served by the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting, 541 U. S., at 1024 (Scalia, J., dissenting from denial of certiorari). This Court, needless to say, also plays a role in clarifying rights. Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too that purpose may support this Court in reviewing the correctness of the lower court’s decision.
We emphasize, however, two limits of today’s holding. First, it addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds. Second, our holding concerns only what this Court may review; what we actually will choose to review is a different matter. That choice will be governed by the ordinary principles informing our decision whether to grant certiorari—a “power [we]... sparingly exereis[e].” Forsyth v. Hammond, 166 U. S. 506, 514 (1897); see also id., at 514-515 (this Court grants review “only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict [in the lower courts], or some matter affecting the interests of this nation... demands such exercise”); this Court’s Rule 10. Our decision today does no more than exempt one special category of cases from our usual rule against considering prevailing parties’ petitions. Going forward, we will consider these petitions one by one in accord with our usual standards.
Ill
Although we reject S. G.’s arguments for dismissing this case at the threshold, we find that a separate jurisdictional problem requires that result: This case, we conclude, is moot.
As we explained above, supra, at 702-703, in a dispute of this kind, both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of one defendant here: Camreta remains employed as a child protective services worker, so he has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice. After we granted certiorari, we discovered that S. G. has “moved to Florida, and ha[s] no intention of relocating back to Oregon.” Brief for Respondent 13, n. 13. What is more, S. G. is now only months away from her 18th birthday — and, presumably, from her high school graduation. See id., at 31. S. G. therefore cannot be affected by the Court of Appeals' ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit's jurisdiction as part of a child abuse investigation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” we have no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968); see, e. g., Atherton Mills v. Johnston, 259 U. S. 13, 15-16 (1922) (suit contesting the validity of a child labor statute mooted when plaintiff-child was “[no longer] within the ages affected by the act”); DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam) (suit challenging law school admissions policy mooted when plaintiff neared graduation). Time and distance combined have stymied our ability to consider this petition.
Camreta makes only one counterargument: He avers that S. G. has a continuing interest in the Ninth Circuit's constitutional ruling because it may help her establish a municipal liability claim against Deschutes County. See Tr. of Oral Arg. 7; id., at 8. S. G.’s initial complaint charged that the county has an official policy of unconstitutionally subjecting schoolchildren to police interrogation. See n. 2, supra. Finding no evidence of such a policy (even assuming that an unlawful seizure had occurred in this case), the District Court granted summary judgment to the county, App. to Pet. for Cert, in No. 09-1454, pp. 66-67, and S. G. did not appeal that ruling, 588 F. 3d, at 1020, n. 4. And although S. G. recently sought to reinstate her claim against the county, the District Court denied that motion. 6:05-cv-06047-AA, Docket Entry No. 139 (D Ore., Jan. 4, 2011). Whatever interest S. G. might have were her municipal liability claim still pending (an issue we need not and do not decide), we do not think S. G.'s dismissed claim against a different defendant involving a separate legal theory can save this case from mootness. See Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1983) (Posner, J.) (“[O]ne can never be certain that findings made in a decision concluding one lawsuit will not some day... control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”).
We thus must decide how to dispose of this case. When a civil suit becomes moot pending appeal, we have the authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U. S. C. § 2106. Our “established” (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39; Alvarez v. Smith, 558 U. S. 87, 94 (2009). “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance,” we have emphasized, “ought not in fairness be forced to acquiesce in” that ruling. U S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 25 (1994). The equitable remedy of vacatur ensures that “those who have been prevented from obtaining the review to which they are entitled [are] not... treated as if there had been a review.” Munsingwear, 340 U. S., at 39.
S. G. contends that vacatur is inappropriate in the qualified immunity context because that disposition would “undermine” the Court of Appeals’ choice to “decide [a] constitutional questio[n]” to govern future cases. Brief for Respondent 41-42; Tr. of Oral Arg. 47. Far from counseling against vacatur, S. G.’s argument reveals the necessity of that procedural course. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences,” so that no party is harmed by what we have called a “preliminary” adjudication. Munsingwear, 340 U. S., at 40-41. As we have just explained, a constitutional ruling in a qualified immunity case is a legally consequential decision; that is the very reason we think it appropriate for review even at the behest of a prevailing party. See supra, at 704-708. When happenstance prevents that review from occurring, the normal rule should apply: Vacatur then rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200 (1988), and “clears the path for future relitigation,” Munsingwear, 340 U. S., at 40.
In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue, and remand for further proceedings consistent with this opinion. See, e. g., Arove v. Hoffman, 552 U. S. 117, 118-119 (2008) (per curiam); Selig v. Pediatric Specialty Care, Inc., 551 U. S. 1142 (2007).
It is so ordered.
Because Greene filed suit as next friend for her minor daughter, we will refer to respondent as S. G. throughout this opinion.
S. G. also sued
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_authoritydecision
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
JETT v. DALLAS INDEPENDENT SCHOOL DISTRICT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 87-2084.
Argued March 28, 1989
Decided June 22, 1989
Frank Gilstrap argued the cause for petitioner in No. 87-2084 and respondent in No. 87-214. With him on the briefs were Frank Hill and Shane Goetz.
Leonard J. SchwaHz argued the cause and filed a brief for respondent in No. 87-2084 and petitioner in No. 87-214.
Together with No. 88-214, Dallas Independent School District v. Jett, also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers and Eric Schnapper; and for the National Education Association by Michael H. Gottesman and Jeremiah A. Collins.
Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, Donald B. Ayer, Glen D. Nager, and Robert D. Sweeney, Jr., filed a brief for the International City Management Association et al. as amici curiae urging affirmance.
Justice O’Connor
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II, in which The Chief Justice, Justice White, and Justice Kennedy join.
The questions before us in these cases are whether 42 U. S. C. § 1981 provides an independent federal cause of action for damages against local governmental entities, and whether that cause of action is broader than the damages remedy available under 42 U. S. C. § 1983, such that a municipality may be held liable for its employees’ violations of § 1981 under a theory of respondeat superior.
I — I
Petitioner Norman Jett, a white male, was employed by respondent Dallas Independent School District (DISD) as a teacher, athletic director, and head football coach at South Oak Cliff High School (South Oak) until his reassignment to another DISD school in 1983. Petitioner was hired by the DISD in 1957, was assigned to assistant coaching duties at South Oak in 1962, and was promoted to athletic director and head football coach of South Oak in 1970. During petitioner’s lengthy tenure at South' Oak, the racial composition of the school changed from predominantly white to predominantly black. In 1975, the DISD assigned Dr. Fredrick Todd, a black, as principal of South Oak. Petitioner and Todd clashed repeatedly over school policies, and in particular over petitioner’s handling of the school’s football program. These conflicts came to a head following a November 19, 1982, football game between South Oak and the predominately white Plano High School. Todd objected to petitioner’s comparison of the South Oak team with professional teams before the match, and to the fact that petitioner entered the officials’ locker room after South Oak lost the game and told two black officials that he would never allow black officials to work another South Oak game. Todd also objected to petitioner’s statements, reported in a local newspaper, to the effect that the majority of South Oak players could not meet proposed National Collegiate Athletic Association academic requirements for collegiate athletes.
On March 15, 1983, Todd informed petitioner that he intended to recommend that petitioner be relieved of his duties as athletic director and head football coach at South Oak. On March 17, 1983, Todd sent a letter to John Kincaide, the director of athletics for DISD, recommending that petitioner be removed based on poor leadership and planning skills and petitioner’s comportment before and after the Plano game. Petitioner subsequently met with John Santillo, director of personnel for DISD, who suggested that petitioner should transfer schools because any remaining professional relationship with Principal Todd had been shattered. Petitioner then met with Linus Wright, the superintendent of the DISD. At this meeting, petitioner informed Superintendent Wright that he believed that Todd’s criticisms of his performance as head coach were unfounded and that in fact Todd was motivated by racial animus and wished to replace petitioner with a black head coach. Superintendent Wright suggested that the difficulties between Todd and petitioner might preclude petitioner from remaining in his coaching position at South Oak, but assured petitioner that another position in the DISD would be secured for him.
On March 25, 1983, Superintendent Wright met with Kin-caide, Santillo, Todd, and two other DISD officials to determine whether petitioner should remain at South Oak. After the meeting, Superintendent Wright officially affirmed Todd’s recommendation to remove petitioner from his duties as coach and athletic director at South Oak. Wright indicated that he felt compelled to follow the recommendation of the school principal. Soon after this meeting, petitioner was informed by Santillo that effective August 4, 1983, he was reassigned as a teacher at the DISD Business Magnet School, a position that did not include any coaching duties. Petitioner’s attendance and performance at the Business Magnet School were poor, and on May 5, 1983, Santillo wrote petitioner indicating that he was being placed on “unassigned personnel budget” and being reassigned to a temporary position in the DISD security department. Upon receiving Santillo’s letter, petitioner filed this lawsuit in the District Court for the Northern District of Texas. The DISD subsequently offered petitioner a position as a teacher and freshman football and track coach at Jefferson High School. Petitioner did not accept this assignment, and on August 19, 1983, he sent his formal letter of resignation to the DISD.
Petitioner brought this action against the DISD and Principal Todd in his personal and official capacities, under 42 U. S. C. §§ 1981 and 1983, alleging due process, First Amendment, and equal protection violations. Petitioner’s due process claim alleged that he had a constitutionally protected property interest in his coaching position at South Oak, of which he was deprived without due process of law. Petitioner’s First Amendment claim was based on the allegation that his removal and subsequent transfer were actions taken in retaliation for his statements to the press regarding the sports program at South Oak. His equal protection and § 1981 causes of action were based on the allegation that his removal from the athletic director and head coaching positions at South Oak was motivated by the fact that he was white, and that Principal Todd, and through him the DISD, were responsible for the racially discriminatory diminution in his employment status. Petitioner also claimed that his resignation was in fact the product of racial harassment and retaliation for the exercise of his First Amendment rights and thus amounted to a constructive discharge. These claims were tried to a jury, which found for petitioner on all counts. The jury awarded petitioner $650,000 against the DISD, $150,000 against Principal Todd and the DISD jointly and severally, and $50,000 in punitive damages against Todd in his personal capacity.
On motion for judgment notwithstanding the verdict, the defendants argued that liability against the DISD was improper because there was no showing that petitioner’s injuries were sustained pursuant to a policy or custom of the school district. App. to Pet. for Cert, in No. 87-2084, p. 46A. The District Court rejected this argument, finding that the DISD Board of Trustees had delegated final and unreviewable authority to Superintendent Wright to reassign personnel as he saw fit. Id., at 47A. In any event, the trial court found that petitioner’s claim of racial discrimination was cognizable under § 1981 as well as § 1983, and indicated that “liability is permitted on solely a basis of respondeat superior when the claim is one of racial discrimination under § 1981.” Ibid. The District Court set aside the punitive damages award against Principal Todd as unsupported by the evidence, found the damages award against the DISD excessive and ordered a remittitur of $200,000, but otherwise denied the defendants’ motions for judgment n.o.v. and a new trial and upheld the jury’s verdict in all respects. Id., at 62A-63A. Principal Todd has reached a settlement with petitioner and is no longer a party to this action. Id., at 82A-84A.
On appeal, the Court of Appeals for the Fifth Circuit reversed in part and remanded. 798 F. 2d 748 (1986). Initially, the court found that petitioner had no constitutionally protected property interest “in the intangible, noneconomic benefits of his assignment as coach.” Id., at 754. Since petitioner had received both his teacher’s and coach’s salary after his reassignment, the change in duties did not deprive him of any state law entitlement protected by the Due Process Clause. The Court of Appeals also set aside the jury’s finding that petitioner was constructively discharged from his teaching position within the DISD. The court found the evidence insufficient to sustain the claim that petitioner’s loss of coaching duties and subsequent offer of reassignment to a lesser coaching position were so humiliating or unpleasant that a reasonable employee would have felt compelled to resign. Id., at 754-756. While finding the question “very close,” the Court of Appeals concluded that there was sufficient evidence from which a reasonable jury could conclude that Principal Todd’s recommendation that petitioner be transferred from his coaching duties at South Oak was motivated by impermissible racial animus. The court noted that Todd had replaced petitioner with- a black coach, that there had been racial overtones in the tension between Todd and petitioner before the Plano game, and that Todd’s explanation of his unsatisfactory rating of petitioner was questionable and was not supported by the testimony of other DISD officials who spoke of petitioner’s performance in laudatory terms. Id., at 756-757. The court also affirmed the jury’s finding that Todd’s recommendation that petitioner be relieved of his coaching duties was motivated in substantial part by petitioner’s protected statements to the press concerning the academic standing of athletes at South Oak. These remarks addressed matters of public concern, and Todd admitted that they were a substantial consideration in his decision to recommend that petitioner be relieved of his coaching duties.
The Court of Appeals then turned to the DISD’s claim that there was insufficient evidence to support a finding of municipal liability under 42 U. S. C. § 1983. The Court of Appeals found that the District Court’s instructions as to the school district’s liability were deficient in two respects. First, the District Court’s instructions did not make clear that the school district could be held liable for the actions of Principal Todd or Superintendent Wright only if those officials were delegated policymaking authority by the school district or acted pursuant to a well settled custom that represented official policy. Second, even if Superintendent Wright could be considered a policymaker for purposes of the transfer of school district personnel, the jury made no finding that Superintendent Wright’s decision to transfer petitioner was either improperly motivated or consciously indifferent to the improper motivations of Principal Todd. Id., at 759-760.
The Court of Appeals also rejected the District Court’s conclusion that the DISD’s liability for Principal Todd’s actions could be predicated on a theory of respondeat superior under § 1981. The court noted that in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), this Court held that Congress did not intend municipalities to be subject to vicarious liability for the federal constitutional or statutory violations of their employees. The Court of Appeals reasoned that “[t]o impose such vicarious liability for only certain wrongs based on section 1981 apparently would contravene the congressional intent behind section 1983.” 798 F. 2d, at 762.
The Court of Appeals published a second opinion in rejecting petitioner’s suggestion for rehearing en banc in which the panel gave further explanation of its holding that respondeat superior liability against local governmental entities was unavailable under § 1981. 837 F. 2d 1244 (1988). The Court of Appeals noted that our decision in Monell rested in part on the conclusion that “ ‘creation of a federal law of respondeat superior would have raised all the constitutional problems’ ” associated with the Sherman amendment which was rejected by the framers of § 1983. 837 F. 2d, at 1247, quoting Monell, supra, at 693.
Because the Court of Appeals’ conclusion that local governmental bodies cannot be held liable under a theory of respondeat superior for their employees’ violations of the rights guaranteed by § 1981 conflicts with the decisions of other Courts of Appeals, see, e. g., Springer v. Seamen, 821 F. 2d 871, 880-881 (CA1 1987); Leonard v. Frankfort Electric and Water Plant Bd., 752 F. 2d 189, 194, n. 9 (CA6 1985) (dictum), we granted Norman Jett’s petition for certiorari in No. 87-2084. 488 U. S. 940 (1988). We also granted the DISD’s cross-petition for certiorari in No. 88-214, ibid., to clarify the application of our decisions in St. Louis v. Pra protnik, 485 U. S. 112 (1988) (plurality opinion), and Pembaur v. Cincinnati, 475 U. S. 469 (1986) (plurality opinion), to the school district’s potential liability for the discriminatory actions of Principal Todd.
We note that at no stage in the proceedings has the school district raised the contention that the substantive scope of the “right... to make... contracts” protected by §1981 does not reach the injury suffered by petitioner here. See Patterson v. McLean Credit Union, ante, at 176-177. Instead, the school district has argued that the limitations on municipal liability under §1983 are applicable to violations of the rights protected by § 1981. Because petitioner has obtained a jury verdict to the effect that Dr. Todd violated his rights under § 1981, and the school district has never contested the judgment below on the ground that § 1981 does not reach petitioner’s employment injury, we assume for purposes of these cases, without deciding, that petitioner’s rights under § 1981 have been violated by his removal and reassignment. See Canton v. Harris, 489 U. S. 378, 388-389, n. 8 (1989); United States v. Leon, 468 U. S. 897, 905 (1984). See also this Court’s Rule 21.1(a).
II
Title 42 U. S. C. § 1981, as amended, provides that:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac-tions of every kind, and no other.”
In essence, petitioner argues that in 1866 the 39th Congress intended to create a cause of action for damages against municipal actors and others who violated the rights now enumerated in § 1981. While petitioner concedes that the text of the 1866 Act itself is completely silent on this score, see Brief for Petitioner 26, petitioner contends that a civil remedy was nonetheless intended for the violation of the rights contained in § 1 of the 1866 Act. Petitioner argues that Congress wished to adopt the prevailing approach to municipal liability to effectuate this damages remedy, which was re-spondeat superior. Petitioner concludes that with this federal damages remedy in place in 1866, it was not the intent of the 42d Congress, which passed present day § 1983, to narrow the more sweeping remedy against local governments which Congress had created five years earlier. Since “repeals by implication are not favored,”'id., at 15 (citations omitted), petitioner concludes that § 1981 must provide an independent cause of action for racial discrimination against local governmental entities, and that this broader remedy is unaffected by the constraints on municipal liability announced in Monell. In the alternative, petitioner argues that even if § 1981 does not create an express cause of action for damages against local governmental entities, 42 U. S. C. § 1988 invites this Court to craft a remedy by looking to common law principles, which again point to a rule of respondeat superior. Brief for Petitioner 27-29. To examine these contentions, we must consider the text and history of both the Civil Rights Act of 1866 and the Civil Rights Act of 1871, the precursors of §§ 1981 and 1983 respectively.
Justice Brennan’s dissent errs in asserting that we have strayed from the question upon which we granted certiorari. See post, at 739-740. Jett’s petition for certiorari asks us to decide “[wjhether a public employee who claims job discrimination on the basis of race must show that the discrimination resulted from official ‘policy or custom’ in order to recover under 42 U. S. C. § 1981.” Pet. for Cert, in No. 87-2084, p. i. In answering this question, the lower court looked to the relationship between §§ 1981 and 1983, and refused to differentiate “between sections 1981 and 1983 with respect to municipal respondeat superior liability.” 837 F. 2d, at 1247. In both his petition for certiorari and his brief on the merits in this Court, petitioner Jett took issue with the Court of Appeals’ conclusion that the express damages remedy under § 1983 militated against the creation or implication of a broader damages remedy under § 1981. See Pet. for Cert, in No. 87-2084, pp. 14-16; Brief for Petitioner 14-25. Moreover, petitioner concedes that “private causes of action under Sections 1981 and 1982 do not arise from the express language of those statutes,” Brief for Petitioner 27, and asks this Court to “look to state law or to fashion a single federal rule,” of municipal damages liability under §1981. Id., at 28-29 (footnote omitted). We think it obvious that the question whether a federal damages remedy broader than that provided by § 1983 should be implied from § 1981 is fairly included in the question upon which we granted certiorari.
Equally implausible is Justice Brennan’s suggestion that we have somehow unwittingly answered this question in the past. See post, at 741. Most of the cases cited by the dissent involved private conduct, and thus quite obviously could not have considered the propriety of judicial implication of a federal damages remedy under § 1981 in the state action context we address here. The only two cases cited by Justice Brennan which involved state actors, Takahashi v. Fish and Game Comm’n, 334 U. S. 410 (1948), and Hurd v. Hodge, 334 U. S. 24 (1948), are completely inapposite. See post, at 745. Takahashi involved a mandamus action filed in state court, and thus understandably had nothing to say about federal damages remedies against state actors under § 1981. Hurd also involved only injunctive relief, and could not have considered the relationship of § 1981 to § 1983, since the latter statute did not apply to the District of Columbia at the time of our decision in that case. See District of Columbia v. Carter, 409 U. S. 418 (1973).
A
On December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had been ratified and become part of the Constitution. Less than three weeks later, Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, introduced S. 61, which was to become the Civil Rights Act of 1866. See Cong. Globe, 39th Cong., 1st Sess., 129 (1866). The bill had eight sections as introduced, the first three of which are relevant to our inquiry here. Section 1, as introduced to the Senate by Trumbull, provided:
“That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.” Id., at 474.
On January 29, 1866, Senator Trumbull took the floor to describe S. 61 to his colleagues. Trumbull indicated that “the first section will amount to nothing more than the declaration in the Constitution itself unless we have the machinery to carry it into effect.” Id., at 475. The Senator then alluded to the second section of the bill which provided:
“That any person who under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude,... or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.” Ibid.
Senator Trumbull told the Senate: “This is the valuable section of the bill so far as protecting the rights of freedmen is concerned.” Ibid. This section would allow for criminal prosecution of those who denied the freedman the rights protected by § 1, and Trumbull felt, in retrospect somewhat naively, that, “it will only be necessary to go into the late slave-holding States and subject to fine and imprisonment one or two in a State, and the most prominent ones I should hope at that, to break up this whole business.” Ibid.
Trumbull then described the third section of the bill, which, as later enacted, provided in pertinent part:
“That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever... such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the ‘Act relating to habeas corpus and regulating judicial proceedings in certain cases,’ approved March three, eighteen hundred and sixty three, and all acts amendatory thereof.” 14 Stat. 27.
Trumbull described this section as “giving to the courts of the United States jurisdiction over all persons committing offenses against the provisions of this act, and also over the cases of persons who are discriminated against by State laws or customs.” Cong. Globe, 39th Cong., 1st Sess., 475 (1866). Much of the debate in both the Senate and the House over the 1866 Act was taken up with the meaning of the terms “civil rights or immunities” contained in the first sentence of § 1 of the bill as introduced in the Senate. The phrase remained in the bill throughout the Senate’s consideration of S. 61, but was stricken by amendment in the House shortly before that body passed the bill.
Discussion of § 2 of the bill focused on both the propriety and constitutionality of subjecting state officers to criminal punishment for effectuating discriminatory state laws. Opponents of the bill consistently referred to criminal punishment and fines being levied against state judges and other state officers for the enforcement of state laws in conflict with § 1. See id,., at 475, 499, 500 (Sen. Cowan); id., at 598 (Sen. Davis); id., at 1121 (Rep. Rogers); id., at 1154 (Rep. El-dr idge). They never intimated that they understood any part of the bill to create a federal damages remedy against state officers or the political subdivisions of the States.
Debate concerning §3 focused on the right of removal of civil and criminal proceedings commenced in state court. Senator Howard, an opponent, engaged in a section by section criticism of the bill after its introduction by. Trumbull. As to § 3 he gave numerous examples of his perception of its operation. All of these involved removal of actions from state court, and none alluded to original federal jurisdiction except in the case of the exclusive criminal jurisdiction expressly provided for. Id., at 479 (“All such cases will be subject to be removed into the Federal courts”); see also id., at 598 (Sen. Davis) (“Section three provides that all suits brought in State courts that come within the purview of the previous sections may be removed into the Federal courts”). On February 2, 1866, the bill passed the Senate by a vote of 33 to 12 and was sent to the House. Id., at 606-607.
Representative Wilson of Iowa, Chairman of the House Judiciary Committee, introduced S. 61 in the House on March 1, 1866. Of § 1 of the bill, he said:
“Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment of civil rights and immunities merely affirms existing law. We are following the Constitution.... It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen.” Id., at 1117.
As did Trumbull in the Senate, Wilson immediately alluded to § 2, the criminal provision, as the main enforcement mechanism of the bill. “In order to accomplish this end, it is necessary to fortify the declaratory portions of this bill with sanctions as will render it effective.” Id., at 1118.
The only discussion of a civil remedy in the House debates surrounding the 1866 Act came in response to Representative Bingham’s proposal to send the bill back to the House Judiciary Committee with instructions “to strike out all parts of said bill which are penal and which authorize criminal proceedings, and in lieu thereof to give all citizens of the United States injured by denial or violation of any of the other rights secured or protected by said act, an action in the United States courts, with double costs in all cases of emergency, without regard to the amount of damages.” Id., at 1266, 1291. Bingham was opposed to the civil rights bill strictly on the grounds that it exceeded the constitutional power of the Federal Government. As to States “sustaining their full constitutional relation to the Government of the United States,” Bingham, along with several other Republicans, doubted the power of the Federal Government to interfere with the reserved powers of the States to define property and other rights. Id., at 1292. While Bingham realized that the same constitutional objections applied to his proposal for modification of the bill, he felt that these would make the bill “less oppressive, and therefore less objectionable.” Id., at 1291.
Representative Wilson responded to his Republican colleague’s proposal. Wilson pointed out that there was no difference in constitutional principle “between saying that the citizen shall be protected by the legislative power of the United States in his rights by civil remedy and declaring that he shall be protected by penal enactments against those who interfere with his rights.” Id., at 1295. Wilson did however see a difference in the effectiveness of the two remedies. He stated:
“This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty it is to protect him. The [Bingham] amendment... recognizes the principle involved, but it says that the citizen despoiled of his rights, instead of being properly protected by the Government, must press his own way through the courts and pay the bills attendant thereon.... The highest obligation which the Government owes to the citizen in return for the allegiance exacted of him is to secure him in the protection of his rights. Under the amendment of the gentleman the citizen can only receive that protection in the form of a few dollars in the way of damages, if he shall be so fortunate as to recover a verdict against a solvent wrongdoer. This is called protection. This is what we are asked to do in the way of enforcing the bill of rights. Dollars are weighed against the right of life, liberty and property.” Ibid.
Bingham’s proposal was thereafter defeated by a vote of 113 to 37. Id., at 1296. The Senate bill was subsequently carried in the House, after the removal of the “civil rights and immunities” language in § 1, and an amendment adding a ninth section to the bill providing for a final appeal to the Supreme Court in cases arising under the Act. Id., at 1366-1367. On March 15,1866, the Senate concurred in the House amendments without a record vote, see id., at 1413-1416, and the bill was sent to the President.
After holding the bill for a full 10 days, President Johnson vetoed the bill and returned it to the Senate with his objections. The President’s criticisms of §§ 2 and 3 of the bill, and Senator Trumbull’s responses thereto, are particularly illuminating. As to § 2, the President declared that it was designed to counteract discriminatory state legislation, “by imposing fine and imprisonment upon the legislators who may pass such... laws.” Id., at 1680. As to the third section, the President indicated that it would vest exclusive federal jurisdiction over all civil and criminal cases where the rights guaranteed in § 1 were affected. Ibid.
Trumbull took issue with both statements. As to the charge that §2 would result in the criminal prosecution of state legislators, Trumbull replied:
“Who is to be punished? Is the law to be punished? Are the men who make the law to be punished? Is that the language of the bill? Not at all. If any person, ‘under color of any law,’ shall subject another to the deprivation of a right to which he is entitled, he is to be punished. Who? The person who, under the color of the law, does the act, not the men who made the law. In some communities in the South a custom prevails by which different punishment is inflicted upon the blacks from that meted out to whites for the same offense. Does this section propose to punish the community where the custom prevails? Or is it to punish the person who, under color of the custom, deprives the party of his right? It is a manifest perversion of the meaning of the section to assert anything else.” Id., at 1758.
Trumbull also answered the President’s charge that the third section of the bill created original federal jurisdiction in all cases where a freedman was involved in a state court proceeding. He stated:
“So in reference to this third section, the jurisdiction is given to the Federal courts of a case affecting the person that is discriminated against. Now, he is not necessarily discriminated against, because there may be a custom in the community discriminating against him, nor because a Legislature may have passed a statute discriminating against him; that statute is of no validity if it comes in conflict with a statute of the United States; and it is not to be presumed that any judge of a State court would hold that a statute of a State discriminating against a person on account of color was valid when there was a statute of the United States with which it was in direct conflict, and the case would not therefore rise in which a party was discriminated against until it was tested, and then if the discrimination was held valid he would have a right- to remove it to a Federal court.” Id., at 1759.
Senator Trumbull then went on to indicate that “[i]f it be necessary in order to protect the freedman in his rights that he should have authority to go into the Federal courts in all cases where a custom [of discrimination] prevails in a State... I think we have the authority to confer that jurisdiction under the second clause of the constitutional amendment.” Ibid. Two days later, on April 6, 1866, the Senate overrode the President’s veto by a vote of 33 to 15. Id., at 1809. On April 9, 1866, the House received both the bill and the President’s veto message which were read on the floor. Id., at 1857-1860. The House then promptly overrode the President’s veto by a vote of 122 to 41, id., at 1861, and the Civil Rights Act of 1866 became law.
Several points relevant to our present inquiry emerge from the history surrounding the adoption of the Civil Rights Act of 1866. First, nowhere did the Act provide for an express damages remedy for violation of the provisions of § 1. See Jones v. Alfred H. Mayer Co., 392 U. S. 409, 414, n. 13 (1968) (noting “[t]hat 42 U. S. C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement”); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 238 (1969); Cannon v. University of Chicago, 441 U. S. 677, 690, n. 12 (1979); id., at 728 (White, J., dissenting). Second, no original federal jurisdiction was created by the 1866 Act which could support a federal damages remedy against state actors. See Allen v. McCurry, 449 U. S. 90, 99, n. 14 (1980) (§3 of the 1866 Act embodied remedy of “postjudgment removal for state-court defendants whose civil rights were threatened”); Georgia v. Rachel, 384 U. S. 780, 788-789 (1966); Strauder v. West Virginia, 100 U. S. 303, 311-312 (1880). Finally, the penal provision, the only provision explicitly directed at state officials, was, in Senator Trumbull’s words, designed to punish the “person who, under the color of the law, does the act,” not “the community where the custom prevails.” Cong. Globe, 39th Cong., 1st Sess., 1758 (1866).
Two events subsequent to the passage of the
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_counsel1
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the 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-Appellant, v. Gregory Allen MARTIN, Defendant-Appellee.
No. 89-1011.
United States Court of Appeals, Fifth Circuit.
Jan. 11, 1990.
Randell P. Means, Asst. U.S. Atty., Ft. Worth, Tex., for plaintiff-appellant.
Ernest W. Rothfelder, Ft. Worth, Tex., for defendant-appellee.
Before GOLDBERG, POLITZ, and JONES, Circuit Judges.
POLITZ, Circuit Judge:
Gregory Allen Martin was sentenced to five years probation on a plea of guilty to use of a communication facility in furtherance of a narcotics offense, 21 U.S.C. § 843(b). The government appeals, contending that Martin should have been sentenced to the statutory maximum of imprisonment for four years because he stipulated to conduct constituting a more serious offense. Finding that the district court incorrectly applied the sentencing guidelines we vacate the sentence and remand for resentencing.
Background
Martin’s guilty plea was entered pursuant to a plea agreement. According to a factual stipulation accompanying that agreement Martin’s friend, David Lee Bo-lin, had arranged for the purchase of five pounds of methamphetamine but was reluctant to take delivery personally because he suspected that he was under police surveillance. Bolin asked Martin to act in his stead. Martin agreed, arranged to meet the seller at a motel, and there obtained the drugs. Unfortunately for Martin the seller was a Drug Enforcement Administration informant and Martin was arrested as he departed the motel with the contraband.
Martin was indicted for possession of five pounds of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1). The government agreed to dismiss the indictment in exchange for Martin’s cooperation in the prosecution of Bolin and for his plea of guilty to a less serious offense — use of a communication facility in facilitating a drug trafficking offense, 21 U.S.C. § 843(b), commonly called the “telephone count.” The district court accepted the guilty plea, sentenced Martin to prison for four years, and, over the objection of the government, suspended that sentence and imposed probation for five years. The government timely appealed.
Analysis
The sole question presented on appeal is whether the sentence, as imposed, comports with the requirements of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-998, and the Sentencing Guidelines adopted pursuant thereto. In the appellate review of sentences we examine factual findings subject to the clearly erroneous rule, and accord great deference to the trial judge’s application of the sentencing guidelines. 18 U.S.C. § 3742(e); United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.), clarified, 868 F.2d 807, cert. denied, - U.S. -, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). Applying this standard we find error herein.
The government maintains that Martin should have been sentenced to imprisonment for four years. It grounds its submission on this analysis. The stipulated facts establish that Martin was guilty of possession of methamphetamine with intent to distribute, a more serious offense than the telephone count to which he pled guilty, and under Guideline § lB1.2(a), the sentence range for the more serious offense, limited by the statutory maximum for the charged offense, should have directed the sentence. The guideline sentencing range for the more serious offense exceeded the maximum sentence provided for the telephone count; therefore, under the government’s theory the guideline sentence necessarily is the four-year statutory maximum.
We generally agree with the government’s analysis but find its approach wanting in significant respects. Sentencing Guideline § lB1.2(a) provides in pertinent part:
The court shall apply the guideline in Chapter Two (Offense Conduct) most applicable to the offense of conviction. Provided, however, in the case of conviction by a plea of guilty or nolo conten-dere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, the court shall apply the guideline in such chapter most applicable to the stipulated offense.
In our recent decision in United States v. Garza, 884 F.2d 181 (5th Cir.1989), rendered after the imposition of sentence herein, we applied Guideline § lB1.2(a) where the stipulated facts reflected a more serious offense, holding that “[t]he correct procedure under section lB1.2(a) is to follow the sentencing guidelines for the more serious stipulated offense.” 884 F.2d at 184. We also recognized in Garza that if the guideline sentence for the stipulated offense exceeds the statutory maximum for the offense of conviction, the statutory maximum sentence becomes the guideline sentence. 884 F.2d at 183; Guideline §§ 5Gl.l(a), lB1.2(a), Application Note 1. As noted, at sentencing the district judge ' did not have the benefit of our decision in Garza.
Like Martin, the defendant in Garza pled guilty to use of a telephone in connection with a narcotics offense, but we held that because the stipulated facts established possession with intent to distribute the guideline for that more serious offense should have been applied. Accordingly, if the court a quo had found that the stipulated facts specifically established Martin’s guilt of possession with intent to distribute, as the government urges, the course mandated by Garza would be the application of the guideline for that offense, subject to the statutory maximum for the offense of conviction.
The district court made no such finding in the case at bar. The finding it did make of a factual basis for acceptance of Martin’s guilty plea to the telephone count does not suffice for that purpose. The district court was concerned about applying the guidelines for an offense for which the defendant had not been convicted and, indeed, for which he was no longer charged. We share that concern. The unacceptable risk attendant in this procedure is that the defendant did not commit the more serious offense. To eliminate or at least markedly minimize that risk it is essential that the district court, and this court, proceed with due deliberation. For this reason, we now hold that the determination that the stipulation contained in or accompanying the guilty plea “specifically establishes a more serious offense” than the offense of conviction must be expressly made on the record by the court prior to sentencing.
We further hold that in deciding whether a stipulation specifically establishes a more serious offense than the offense of conviction the trial court must follow the directive contained in Fed.R.Crim.P. 11(f) and satisfy itself that a “factual basis for each essential element of the crime [has been] shown.” United States v. Montoya-Camacho, 644 F.2d 480, 485 (5th Cir.1981). The court must examine “the relation between the law and the acts the defendant admits” to ascertain whether the stipulated conduct constitutes a criminal offense. McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Recognizing the additional risk inherent in an inquiry into the factual and legal basis for an offense to which the defendant has not pleaded guilty, we remind of our observation in United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) that: “the more complex or doubtful the situation ..., the more searching will be the inquiry dictated by sound judgment and discretion.”
The district court’s disposition towards leniency brings into focus a second inquiry which we have not previously addressed: may the court depart from the guidelines and sentence below the statutory maximum for the offense of conviction when the guideline calculations for the stipulated offense yield a sentencing range above the statutory maximum. We hold that the court may do so, provided that appropriate and adequate reasons for the departure are assigned. 18 U.S.C. §§ 3553(c), 3742(e), (f). We find nothing in either the relevant statutory or guideline provisions, 18 U.S.C. § 3553(b), 28 U.S.C. 994(a)(2)(E); Guideline Parts 5 K, 6 B; which would make departure inapplicable to the sentencing procedure for guilty plea convictions. To the contrary, the Introductory Commentary to Guideline Part 6 B reaffirms that sentencing in guilty plea settings is a judicial function and recognizes the court’s discretion to depart from the indicated sentence. See also, United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989) (discussing importance of downward departures in mitigating possible disincentives to plea bargaining posed by Guidelines).
In sum, on remand the district court must first make an explicit finding as to whether the stipulated facts specifically establish that Martin committed a more serious offense than the telephone count. In doing so the court is to apply the standard implicit in Fed.R.Crim.P. 11(f). If the court concludes that a more serious offense is not thus established, it shall apply the guidelines for the offense of conviction. If the court concludes that a more serious offense properly has been established, it shall apply the guidelines for the more serious offense, limited to the maximum statutory sentence for the telephone count. In either instance the court may, in its discretion, depart from the guideline sentence, with an upwards departure in the latter instance being subject to the constraints of the statutory maximum. In doing so, the court must place on the record a reasonable explanation for its departure.
The sentence is VACATED and the matter is REMANDED for resentencing.
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:
|
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.
BFP v. RESOLUTION TRUST CORPORATION, as receiver of IMPERIAL FEDERAL SAVINGS ASSOCIATION, et al.
No. 92-1370.
Argued December 7, 1993
Decided May 23, 1994
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Blackmun, Stevens, and Ginsburg, JJ., joined, post, p. 549.
Roy B. Woolsey argued the cause for petitioner. With him on the briefs was Ronald B. Coulombe.
Ronald J. Mann argued the cause for respondent Resolution Trust Corporation. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Jeffrey P. Minear, Joseph Patchan, Jeffrey Ehrlich, and Janice Lynn Green.
Michael R. Sment argued the cause and filed a brief for respondent Osborne et al.
Marian C. Nowell, Henry J. Sommer, Gary Klein, Neil Fogarty, and Philip Shuehman filed a brief for Frank Allen et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Council of Life Insurance et al. by Christopher F. Graham, James L. Cunningham, and Richard E. Barnsback; for the California Trustee’s Association et al. by Phillip M. Adleson, Patrie J. Kelly, and Duane W. Shewaga; for the Council of State Governments et al. by Richard Ruda; for the Federal Home Loan Mortgage Corporation et al. by Dean S. Cooper, Roger M. Whelan, David F. B. Smith, and William E. Cumberland; and for Jim Walter Homes, Inc., by Lawrence A G. Johnson.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether the consideration received from a noncollusive, real estate mortgage foreclosure sale conducted in conformance with applicable state law conclusively satisfies the Bankruptcy Code’s requirement that transfers of property by insolvent debtors within one year prior to the filing of a bankruptcy petition be in exchange for “a reasonably equivalent value.” 11 U. S. C. § 548(a)(2).
I
Petitioner BFP is a partnership, formed, by Wayne and Marlene Pedersen and Russell Barton in 1987, for the purpose of buying a home in Newport Beach, California, from Sheldon and Ann Foreman. Petitioner took title subject to a first deed of trust in favor of Imperial Savings Association (Imperial) to secure payment of a loan of $356,250 made to the Pedersens in connection with petitioner’s acquisition of the home. Petitioner granted a second deed of trust to the Foremans as security for a $200,000 promissory note. Subsequently, Imperial, whose loan was not being serviced, entered a notice of default under the first deed of trust and scheduled a properly noticed foreclosure sale. The foreclosure proceedings were temporarily delayed by the filing of an involuntary bankruptcy petition on behalf of petitioner. After the dismissal of that petition in June 1989,. Imperial’s foreclosure proceeding was completed at a foreclosure sale on July 12, 1989. The home was purchased by respondent Paul Osborne for $433,000.
In October 1989, petitioner filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U. S. C. §§ 1101-1174. Acting as a debtor in possession, petitioner filed a complaint in Bankruptcy Court seeking to set aside the conveyance of the home to respondent Osborne on the grounds that the foreclosure sale constituted a fraudulent transfer under § 548 of the Code, 11 U. S. C. §548. Petitioner alleged that the home was actually worth over $725,000 at the time of the sale to Osborne. Acting on separate motions, the Bankruptcy Court dismissed the complaint as to the private respondents and granted summary judgment in favor of Imperial. The Bankruptcy Court found, inter alia, that the foreclosure sale had been conducted in compliance with California law and was neither collusive nor fraudulent. In an unpublished opinion, the District Court affirmed the Bankruptcy Court’s granting of the private respondents’ motion to dismiss. A divided bankruptcy appellate panel affirmed the Bankruptcy Court’s entry of summary judgment for Imperial. 132 B. R. 748 (1991). Applying the analysis set forth in In re Madrid, 21 B. R. 424 (Bkrtcy. App. Pan. CA9 1982), affirmed on other grounds, 725 F. 2d 1197 (CA9), cert, denied, 469 U. S. 833 (1984), the panel majority held that a “non-collusive and regularly conducted nonjudicial foreclosure sale... cannot be challenged as a fraudulent conveyance because the consideration received in such a sale establishes ‘reasonably equivalent value’ as a matter of law.” 132 B. R., at 750.
Petitioner sought review of both decisions in the Court of Appeals for the Ninth Circuit, which consolidated the appeals. The Court of Appeals affirmed. In re BFP, 974 F. 2d 1144 (1992). BFP filed a petition for certiorari, which we granted. 508 U. S. 938 (1993).
II
Section 548 of the Bankruptcy Code, 11 U. S. C. § 548, sets forth the powers of a trustee in bankruptcy (or, in a Chapter 11 case, a debtor in possession) to avoid fraudulent transfers. It permits to be set aside not only transfers infected by actual fraud but certain other transfers as well — so-called constructively fraudulent transfers. The constructive fraud provision at issue in this case applies to transfers by insolvent debtors. It permits avoidance if the trustee can establish (1) that the debtor had an interest in property; (2) that a transfer of that interest occurred within one year of the filing of the bankruptcy petition; (3) that the debtor was insolvent at the time of the transfer or became insolvent as a result thereof; and (4) that the debtor received “less than a reasonably equivalent value in exchange for such transfer.” 11 U. S. C. § 548(a)(2)(A). It is the last of these four elements that presents the issue in the case before us.
Section 548 applies to any “transfer,” which includes “foreclosure of the debtor’s equity of redemption.” 11 U. S. C. § 101(54) (1988 ed., Supp. IV). Of the three critical terms “reasonably equivalent value,” only the last is. defined: “value” means, for purposes of § 548, “property, or satisfaction or securing of a... debt of the debtor,” 11 U. S. C. § 548(d)(2)(A). The question presented here, therefore, is whether the amount of debt (to the first and second lienholders) satisfied at the foreclosure sale (viz., a total of $433,000) is “reasonably equivalent” to the worth of the real estate conveyed. The Courts of Appeals have divided on the meaning of those undefined terms. In Durrett v. Washington Nat. Ins. Co., 621 F. 2d 201 (1980), the Fifth Circuit, interpreting a provision of the old Bankruptcy Act analogous to § 548(a)(2), held that a foreclosure sale that yielded 57% of the property’s fair market value could be set aside, and indicated in dicta that any such sale for less than 70% of fair market value should be invalidated. Id., at 203-204. This “Durrett rule” has continued to be applied by some courts under § 548 of the new Bankruptcy Code. See In re Little-ton, 888 F. 2d 90, 92, n. 5 (CA11 1989). In In re Bundles, 856 F. 2d 815, 820 (1988), the Seventh Circuit rejected the Durrett rule in favor of a case-by-case, “all facts and circumstances” approach to the question of reasonably equivalent value, with a rebuttable presumption that the foreclosure sale price is sufficient to withstand attack under § 548(a)(2). 856 F. 2d, at 824-825; see also In re Grissom, 955 F. 2d 1440, 1445-1446 (CA11 1992). In this case the Ninth Circuit, agreeing with the Sixth Circuit, see In re Winshall Settler’s Trust, 758 F. 2d 1136, 1139 (CA6 1985), adopted the position first put forward in In re Madrid, 21 B. R. 424 (Bkrtcy. App. Pan. CA9 1982), affirmed on other grounds, 725 F. 2d 1197 (CA9), cert. denied, 469 U. S. 833 (1984), that the consideration received at a noncollusive, regularly conducted real estate foreclosure sale constitutes a reasonably equivalent value under § 548(a)(2)(A). The Court of Appeals acknowledged that it “necessarily part[ed] from the positions taken by the Fifth Circuit in Durrett... and the Seventh Circuit in Bundles.” 974 F. 2d, at 1148.
In contrast to the approach adopted by the Ninth Circuit in the present case, both Durrett and Bundles refer to fair market value as the benchmark against which determination of reasonably equivalent value is to be measured. In the context of an otherwise lawful mortgage foreclosure sale of real estate, such reference is in our opinion not consistent with the text of the Bankruptcy Code. The term “fair market value,” though it is a well-established concept, does not appear in § 548. In contrast, § 522, dealing with a debtor’s exemptions, specifically provides that, for purposes of that section, “ ‘value’ means fair market value as of the date of the filing of the petition.” 11 U. S. C. § 522(a)(2). “Fair market value” also appears in the Code provision that defines the extent to which indebtedness with respect to an equity security is not forgiven for the purpose of determining whether the debtor’s estate has realized taxable income. §346(j)(7)(B). Section 548, on the other hand, seemingly goes out of its way to avoid that standard term. It might readily have said “received less than fair market value in exchange for such transfer or obligation,” or perhaps “less than a reasonable equivalent of fair market value.” Instead, it used the (as far as we are aware) entirely novel phrase “reasonably equivalent value.” “[I]t is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another,” Chicago v. Environmental Defense Fund, ante, at 338 (internal quotation marks omitted), and that presumption is even stronger when the omission entails the replacement of standard legal terminology with a neologism. One must suspect the language means that fair market value cannot — or at least cannot always — be the benchmark.
That suspicion becomes a certitude when one considers that market value, as it is commonly understood, has no applicability in the forced-sale context; indeed, it is the very antithesis of forced-sale value. “The market value of... a piece of property is the price which it might be expected to bring if offered for sale in a fair market; not the price which might be obtained on a sale at public auction or a sale forced by the necessities of the owner, but such a price as would be fixed by negotiation and mutual agreement, after ample time to find a purchaser, as between a vendor who is willing (but not compelled) to sell and a purchaser who desires to buy but is not compelled to take the particular... piece of property.” Black’s Law Dictionary 971 (6th ed. 1990). In short, “fair market value” presumes market conditions that, by definition, simply do not obtain in the context of a forced sale. See, e. g., East Bay Municipal Utility District v. Kieffer, 99 Cal. App. 240, 255, 278 P. 476, 482 (1929), overruled on other grounds by County of San Diego v. Miller, 13 Cal. 3d 684, 532 P. 2d 139 (1975) (in bank); Nevada Nat. Leasing Co. v. Hereford, 36 Cal. 3d 146, 152, 680 P. 2d 1077, 1080 (1984) (in bank); Guardian Loan Co. v. Early, 47 N. Y. 2d 515, 521, 392 N. E. 2d 1240, 1244 (1979).
Neither petitioner, petitioner’s amici, nor any federal court adopting the Durrett or the Bundles analysis has come to grips with this glaring discrepancy between the factors relevant to an appraisal of a property’s market value, on the one hand, and the strictures of the foreclosure process on the other. Market value cannot be the criterion of equivalence in the foreclosure-sale context. The language of § 548(a)(2)(A) (“received less than a reasonably equivalent value in exchange”) requires judicial inquiry into whether the foreclosed property was sold for a price that approximated its worth at the time of sale. An appraiser’s reconstruction of “fair market value” could show what similar property would be worth if it did not have to be sold within the time and manner strictures of state-prescribed foreclosure. But property that must be sold within those strictures is simply worth less. No one would pay as much to own such property as he would pay to own real estate that could be sold at leisure and pursuant to normal marketing techniques. And it is no more realistic to ignore that characteristic of the property (the fact that state foreclosure law permits the mortgagee to sell it at forced sale) than it is to ignore other price-affecting characteristics (such as the fact that state zoning law permits the owner of the neighboring lot to open a gas station). Absent a clear statutory requirement to the contrary, we must assume the validity of this state-law regulatory background and take due account of its effect. “The existence and force and function of established institutions of local government are always in the consciousness of lawmakers and, while their weight may vary, they may never be completely overlooked in the task of interpretation.” Davies Warehouse Co. v. Bowles, 321 U. S. 144, 154 (1944). Cf. Gregory v. Ashcroft, 501 U. S. 452, 460-462 (1991).
There is another artificially constructed criterion we might look to instead of “fair market price.” One might judge there to be such a thing as a “reasonable” or “fair” forced-sale price. Such a conviction must lie behind the Bundles inquiry into whether the state foreclosure proceedings “were calculated... to return to the debtor-mortgagor his equity in the property.” 856 F. 2d, at 824. And perhaps that is what the courts that follow the Durrett rule have in mind when they select 70% of fair market value as the outer limit of “reasonably equivalent value” for forecloseable property (we have no idea where else such an arbitrary percentage could have come from). The problem is that such judgments represent policy determinations that the Bankruptcy Code gives us no apparent authority to make. How closely the price received in a forced sale is likely to approximate fair market value depends upon the terms of the forced sale — how quickly it may be made, what sort of public notice must be given, etc. But the terms for foreclosure sale are not standard. They vary Considerably from State to State, depending upon, among other things, how the particular State values the divergent interests of debtor and creditor. To specify a federal “reasonable” foreclosure-sale price is to extend federal bankruptcy law well beyond the traditional field of fraudulent transfers, into realms of policy where it has not ventured before. Some sense of history is needed to appreciate this.
The modern law of fraudulent transfers had its origin in the Statute of 13 Elizabeth, which invalidated “covinous and fraudulent” transfers designed “to delay, hinder or defraud creditors and others.” 13 Eliz., ch. 5 (1570). English courts soon developed the doctrine of “badges of fraud”: proof by a creditor of certain objective facts (for example, a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession, or grossly inadequate consideration) would raise a rebuttable presumption of actual fraudulent intent. See Twyne’s Case, 3 Coke Rep. 80b, 76 Eng. Rep. 809 (K. B. 1601); O. Bump, Fraudulent Conveyances: A Treatise upon Conveyances Made by Debtors to Defraud Creditors 31-60 (3d ed. 1882). Every American bankruptcy law has incorporated a fraudulent transfer provision; the 1898 Act specifically adopted the language of the Statute of 13 Elizabeth. Bankruptcy Act of July 1, 1898, ch. 541, § 67(e), 30 Stat. 564-565.
The history of foreclosure law also begins in England, where courts of chancery developed the “equity of redemption” — the equitable right of a borrower to buy back, or redeem, property conveyed as security by paying the secured debt on a later date than “law day,” the original due date. The courts’ continued expansion of the period of redemption left lenders in a quandary, since title to forfeited property could remain clouded for years after law day. To meet this problem, courts created the equitable remedy of foreclosure: after a certain date the borrower would be forever foreclosed from exercising his equity of redemption. This remedy was called strict foreclosure because the borrower’s entire interest in the property was forfeited, regardless of any accumulated equity. See G. Glenn, 1 Mortgages 3-18,358-362,395-406 (1943); G. Osborne, Mortgages 144 (2d ed. 1970). The next major change took place in 19th-century America, with the development of foreclosure by sale (with the surplus over the debt refunded to the debtor) as a means of avoiding the draconian consequences of strict foreclosure. Id., at 661-663; Glenn, supra, at 460-462, 622. Since then, the States have created diverse networks of judicially and legislatively crafted rules governing the foreclosure process, to achieve what each of them considers the proper balance between the needs of lenders and borrowers. All States permit judicial foreclosure, conducted under direct judicial oversight; about half of the States also permit foreclosure by exercising a private power of sale provided in the mortgage documents. See Zinman, Houle, & Weiss, Fraudulent Transfers According to Alden, Gross and Borowitz: A Tale of Two Circuits, 39 Bus. Law. 977,1004-1005 (1984). Foreclosure laws typically require notice to the defaulting borrower, a substantial lead time before the commencement of foreclosure proceedings, publication of a notice of sale, and strict adherence to prescribed bidding rules and auction procedures. Many States require that the auction be conducted by a government official, and some forbid the property to be sold for less than a specified fraction of a mandatory presale fair-market-value appraisal. See id., at 1002, 1004-1005; Osborne, supra, at 683, 733-735; G. Osborne, G. Nelson, & D. Whitman, Real Estate Finance Law 9, 446-447, 475-477 (1979). When these procedures have been followed, however, it is “black letter” law that mere inadequacy of the foreclosure sale price is no basis for setting the sale aside, though it may be set aside (under state foreclosure law, rather than fraudulent transfer law) if the price is so low as to “shock the conscience or raise a presumption of fraud or unfairness.” Osborne, Nelson, & Whitman, supra, at 469; see also Gelfert v. National City Bank of N. Y., 313 U. S. 221, 232 (1941); Ballentyne v. Smith, 205 U. S. 285, 290 (1907).
Fraudulent transfer law and foreclosure law enjoyed over 400 years of peaceful coexistence in Anglo-American jurisprudence until the Fifth Circuit’s unprecedented 1980 decision in Durrett. To our knowledge no prior decision had ever applied the “grossly inadequate price” badge of fraud under fraudulent transfer law to set aside a foreclosure sale. To say that the “reasonably equivalent value” language in the fraudulent transfer provision of the Bankruptcy Code requires a foreclosure sale to yield a certain minimum price beyond what state foreclosure law requires, is to say, in essence, that the Code has adopted Durrett or Bundles. Surely Congress has the power pursuant to its constitutional grant of authority over bankruptcy, U. S. Const., Art. I, § 8, cl. 4, to disrupt the ancient harmony that foreclosure law and fraudulent conveyance law, those two pillars of debtor-creditor jurisprudence, have heretofore enjoyed. But absent clearer textual guidance than the phrase “reasonably equivalent value” — a phrase entirely compatible with preexisting practice — we will not presume such a radical departure. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 380 (1988); Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); cf. United States v. Texas, 507 U. S. 529, 534 (1993) (statutes that invade common law must be read with presumption favoring retention of long-established principles absent evident statutory purpose to the contrary).
Federal statutes impinging upon important state interests “cannot... be construed without regard to the implications of our dual system of government.... [W]hen the Federal Government takes over... local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539-540 (1947), quoted in Kelly v. Robinson, 479 U. S. 36, 49-50, n. 11 (1986). It is beyond question that an essential state interest is at issue here: We have said that “the general welfare of society is involved in the security of the titles to real estate” and the power to ensure that security “inheres in the very nature of [state] government.” American Land Co. v. Zeiss, 219 U. S. 47, 60 (1911). Nor is there any doubt that the interpretation urged by petitioner would have a profound effect upon that interest: The title of every piece of realty purchased at foreclosure would be under a federally created cloud. (Already, title insurers have reacted to the Durrett rule by including specially crafted exceptions from coverage in many policies issued for properties purchased at foreclosure sales. See, e. g., L. Cherkis & L. King, Collier Real Estate Transactions and the Bankruptcy Code, pp. 5-18 to 5-19 (1992).) To displace traditional state regulation in such a manner, the federal statutory purpose must be “clear and manifest,” English v. General Elec. Co., 496 U. S. 72, 79 (1990). Cf. Gregory v. Ashcroft, 501 U. S., at 460-461. Otherwise, the Bankruptcy Code will be construed to adopt, rather than to displace, pre-existing state law. See Kelly, supra, at 49; Butner v. United States, 440 U. S. 48, 54-55 (1979); Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 171 (1946) (Frankfurter, J., concurring).
For the reasons described, we decline to read the phrase “reasonably equivalent value” in § 548(a)(2) to mean, in its application to mortgage foreclosure sales, either “fair market value” or “fair foreclosure price” (whether calculated as a percentage of fair market value or otherwise). We deem, as the law has always deemed, that a fair and proper price, or a “reasonably equivalent value,” for foreclosed property, is the price in fact received at the foreclosure sale, so long as all the requirements of the State’s foreclosure law have been complied with.
This conclusion does not render § 548(a)(2) superfluous, since the “reasonably equivalent value” criterion will continue to have independent meaning (ordinarily a meaning similar to fair market value) outside the foreclosure context. Indeed, § 548(a)(2) will even continue to be an exclusive means of invalidating some foreclosure sales. Although collusive foreclosure sales are likely subject to attack under § 548(a)(1), which authorizes the trustee to avoid transfers “made... with actual intent to hinder, delay, or defraud” creditors, that provision may not reach foreclosure sales that, while not intentionally fraudulent, nevertheless fail to comply with all governing state laws. Cf. 4 L. King, Collier on Bankruptcy ¶ 548.02, p. 548-35 (15th ed. 1993) (contrasting subsections (a)(1) and (a)(2)(A) of §548). Any irregularity in the conduct of the sale that would permit judicial invalidation of the sale under applicable state law deprives the sale price of its conclusive force under § 548(a)(2)(A), and the transfer may be avoided if the price received was not reasonably equivalent to the property’s actual value at the time of the sale (which we think would be the price that would have been received if the foreclosure sale had proceeded according to law).
Ill
A few words may be added in general response to the dissent. We have no quarrel with the dissent’s assertion that where the “meaning of the Bankruptcy Code’s text is itself clear,” post, at 566, its operation is unimpeded by contrary state law or prior practice. Nor do we contend that Congress must override historical state practice “expressly or not at all.” Post, at 565. The Bankruptcy Code can of course override by implication when the implication is unambiguous. But where the intent to override is doubtful, our federal system demands deference to long-established traditions of state regulation.
The dissent’s insistence that here no doubt exists — that our reading of the statute is “in derogation of the straightforward language used by Congress,” post, at 549 (emphasis added) — does not withstand scrutiny. The problem is not that we disagree with the dissent’s proffered “plain meaning” of § 548(a)(2)(A) (“[T]he bankruptcy court must compare the price received by the insolvent debtor and the worth of the item when sold and set aside the transfer if the former was substantially (‘[un]reasonabl[y]’) ‘less than’ the latter,” post, at 552) — which indeed echoes our own framing of the question presented (“whether the amount of debt... satisfied at the foreclosure sale... is ‘reasonably equivalent’ to the worth of the real estate conveyed,” supra, at 536). There is no doubt that this provision directs an inquiry into the relationship of the value received by the debtor to the worth of the property transferred. The problem, however, as any “ordinary speaker of English would have no difficulty grasping,” post, at 552, is that this highly generalized reformulation of the “plain meaning” of “reasonably equivalent value” continues to leave unanswered the one question central to this case, wherein the ambiguity lies: What is aforeclosed, property worth? Obviously, until that is determined, we cannot know whether the value received in exchange for foreclosed property is “reasonably equivalent.” We have considered three (not, as the dissent insists, only two, see post, at 549) possible answers to this question — fair market value, supra, at 536-540, reasonable forced-sale price, supra, at 540, and the foreclosure-sale price itself — and have settled on the last. We would have expected the dissent to opt for one of the other two, or perhaps even to concoct a fourth; but one searches Justice Souter’s opinion in vain for any alternative response to the question of the transferred property’s worth. Instead, the dissent simply reiterates the “single meaning” of “reasonably equivalent value” (with which we entirely agree): “[A] court should discern the ‘value’ of the property transferred and determine whether the price paid was, under the circumstances, ‘less than reasonable].’ ” Post, at 559. Well and good. But what is the “value”? The dissent has no response, evidently thinking that, in order to establish that the law is clear, it suffices to show that “the eminent sense of the natural reading,” post, at 565, provides an unanswered question.
Instead of answering the question, the dissent gives us hope that someone else will answer it, exhorting us “to believe that [bankruptcy courts], familiar with these cases (and with local conditions) as we are not, will give [“reasonably equivalent value”] sensible content in evaluating particular transfers on foreclosure.” Post, at 560. While we share the dissent’s confidence in the capabilities of the United States Bankruptcy Courts, it is the proper function of this Court to give “sensible content” to the provisions of the United States Code. It is surely the case that bankruptcy “courts regularly make... determinations about the ‘reasonably equivalent value’ of assets transferred through other means than foreclosure sales.” Post, at 560. But in the vast majority of those cases, they can refer to the traditional common-law notion of fair market value as the benchmark. As we have demonstrated, this generally useful concept simply has no application in the foreclosure-sale context, supra, at 536-540.
Although the dissent’s conception of what constitutes a property’s “value” is unclear, it does seem to take account of the fact that the property is subject to forced sale. The dissent refers, for example, to a reasonable price “under the circumstances,” post, at 559, and to the “worth of the item when sold,” post, at 552 (emphasis added). But just as we are never told how the broader question of a property’s “worth” is to be answered, neither are we informed how the lesser included inquiry into the impact of forced sale is to be conducted. Once again, we are called upon to have faith that bankruptcy courts will be able to determine whether a property’s foreclosure-sale price falls unreasonably short of its “optimal value,” post, at 559, whatever that may be. This, the dissent tells us, is the statute’s plain meaning.
We take issue with the dissent’s characterization of our interpretation as carving out an “exception” for foreclosure sales, post, at 549, or as giving “two different and inconsistent meanings,” post, at 557, to “reasonably equivalent value.” As we have emphasized, the inquiry under § 548(a)(2)(A)— whether the debtor has received value that is substantially comparable to the worth of the transferred property — is the same for all transfers. But as we have also explained, the fact that a piece of property is legally subject to forced sale, like any other fact bearing upon the property’s use or alien-ability, necessarily affects its worth. Unlike most other legal restrictions, however, foreclosure has the effect of completely redefining the market in which the property is offered for sale; normal free-market rules of exchange are replaced by the far more restrictive rules governing forced sales. Given this altered reality, and the concomitant inutility of the normal tool for determining what property is worth (fair market value), the only legitimate evidence of the property’s value at the time it is sold is the foreclosure-sale price itself.
* * *
For the foregoing reasons, the judgment of the Court of Appeals for the Ninth Circuit is
Affirmed.
Respondent Resolution Trust Corporation (RTC) acts in this case as receiver of Imperial Federal Savings Association (Imperial Federal), which was organized pursuant to a June 22,1990, order of the Director of the Office of Thrift Supervision, and into which RTC transferred certain assets and liabilities of Imperial. The Director previously had appointed RTC as receiver of Imperial. For convenience we refer to all respondents other than RTC and Imperial as the private respondents.
Title 11 U. S. C. §548 provides in relevant part:
“(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
“(1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
“(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
“(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation....”
We emphasize that our opinion today covers only mortgage foreclosures of real estate. The considerations bearing upon other foreclosures and forced sales (to satisfy tax liens, for example) may be different.
Our discussion assumes that the phrase “reasonably equivalent” means “approximately equivalent,” or “roughly equivalent.” One could, wé suppose, torture it into meaning “as close to equivalent as can reasonably be expected” — in which event even a vast divergence from equivalent value would be permissible so long as there is good reason for it. On such an analysis, fair market value could be the criterion of equivalence, even in a forced-sale context; the forced sale would be the reason why gross in-equivalence is nonetheless reasonable equivalence. Such word-gaming would deprive the criterion of all meaning. If “reasonably equivalent value” means only “as close to equivalent value as is reasonable,” the statute might as well have said “reasonably infinite value.”
We are baffled by the dissent’s perception of a “patent” difference between zoning and foreclosure laws insofar as impact upon property value is concerned, post, at 657-558, n. 10. The only distinction we perceive is that the former constitute permanent restrictions upon use of the subject property, while the latter apply for a brief period of time and restrict only the manner of its sale. This difference says nothing about how significantly the respective regimes affect the property’s value when they are operative. The dissent characterizes foreclosure rules as “merely procedural,” and asserts that this renders them, unlike “substantive” zoning regulations, irrelevant in bankruptcy. We are not sure we agree with the characterization. But in any event, the cases relied on for this distinction all address creditors’ attempts to claim the benefit of state rules of law (whether procedural or substantive) as property rights, in a bankruptcy proceeding. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 370-371 (1988); Owen v. Owen, 500 U. S. 305, 313 (1991); United States v. Whiting Pools, Inc., 462 U. S. 198, 206-207, and nn. 14, 15 (1983). None of them declares or even intimates that state laws, procedural or otherwise, are irrelevant to prebankruptcy valuation questions such as that presented by § 548(a)(2)(A).
The only ease cited by Durrett in support of its extension of fraudulent transfer doctrine, Schafer v. Hammond, 456 F. 2d 15 (CA10 1972), involved a direct sale, not a foreclosure.
We are unpersuaded by petitioner’s argument that the 1984 amendments to the Bankruptcy Code codified the Durrett rule. Those amendments expanded the definition of “transfer” to include “foreclosure of the debtor’s equity of redemption,” 11 U. S. C. § 101(54) (1988 ed., Supp. IV), and
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_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America v. Leonard SMITH, Appellant.
No. 71-1852.
United States Court of Appeals, District of Columbia Circuit.
Sept. 26, 1972.
As Amended Oct. 3, 1972.
Messrs. Edgar H. Brenner and Steven P. Lockman, Washington, D. C. (appointed by this Court), were on the brief for appellant.
Mr. Harold H. Titus, Jr., U. S. Atty., was on the brief for appellee. Messrs. John A. Terry, Warren L. Miller, and James F. McMullin, Asst. U. S. Attys., were also on the brief for appellee.
Before McGOWAN, LEYENTHAL, and MacKINNON, Circuit Judges.
PER CURIAM:
Appellant was convicted of assault with intent to commit rape in violation of D.C.Code § 22-501 for which he received a sentence of one to five years in prison. His appeal principally challenges the admission into evidence of a benzidine test which was administered at the police station and allegedly indicated the presence of blood on his penis shortly after the assault. The trial judge held a pretrial hearing and denied appellant’s motion to suppress the results of the test. We sustain his ruling and the admission into evidence of the result of such test and affirm the judgment of conviction.
I
The jury found that appellant, with intent to rape, had assaulted the four and one-half-year-old daughter of a woman with whom he was living. The assault was viewed through a hole in a bedroom door by the six-year-old daughter and was corroborated by substantial physical evidence. The victim’s eyes were red and swollen and caked with tears, and her mother testified:
I started to examine her and I screamed. I got the towel and I wet it so I could wipe her off. ... I saw blood and bowel movement and I saw some white stuff. ... I thought it was some of the sperms or discharge or something. ... I use the word torn and busted up. Her rectum was bleeding . . . she had blood, red all around her rectum. . . . (Tr. 64).
A timely inspection by the victim’s grandmother and by a medical doctor (obstetrics and gynecology) at District of Columbia General Hospital confirmed abuse and damage to the child's rectum and vagina. Appellant and the grandmother’s husband were the only men known to be in the house at the time. The house was so arranged that the grandmother would have noticed any person entering the apartment where the children were playing.
An immediate complaint was made to the police and two detectives came to the house to investigate the allegations. The detectives asked appellant to accompany them to police headquarters “to get the matter straightened out” and the trial judge concluded that this constituted an arrest. Appellant was advised of his constitutional rights from a form which he signed (Tr. 95, 181-183). In response to police questions appellant declared that none of the several women with whom he had had sexual relations during the past few days had been menstruating (Tr. 178, 185). It was then explained to appellant that the police would like him to undergo a benzidine test “to see if there was a show of blood” (Tr. 179). The mechanics of the test were outlined, and appellant was advised that if the test results were positive he would be charged with the offense, if negative, he would be released (Tr. 179). Appellant replied that “he had no fear about the test because he knew it wouldn’t come up positive” (Tr. 181). At headquarters the technician explained the principles of the test to appellant (Tr. 187). When simple visual inspection of appellant’s penis disclosed nothing unusual (blood would have been unusual), the benzidine test was performed (Tr. 188). “There was a positive color reaction” (Tr. 99). At trial, in response to evidence of the positive reaction which resulted from the benzidine test appellant changed the story he had given to the police at the time of his arrest and claimed that the night before the alleged offense he had had sexual relations with a neighbor, whose name he could not recall, who had begun to menstruate during their act of sexual intercourse (Tr. 118). When cross examined about this inconsistency with the prior statement that he had made to the police, appellant attempted to reconcile the inconsistency thus:
But, see, they asked me have I had intercourse with anybody who was on a period. But I didn’t have intercourse with anybody who was on a period at that time. I had intercourse with somebody who came on the period. (Tr. 119-120).
II
Appellant now contends that the administration of the benzidine test upon his person was an unreasonable search and seizure in violation of the Fourth Amendment and resulted in a deprivation of his right to counsel as guaranteed by the Sixth Amendment. In reply to these claims the trial court found:
(1) appellant was not entitled to counsel at police headquarters and did not seek counsel; (2) appellant consented to the test, even though his consent was not required; (3) the test was incident to a lawful arrest based upon probable cause; (4) the test was “purely chemical,” as opposed to “medical” within the meaning of Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)].
Appellant prefaces this claim by an assertion that the detectives did not arrest him. However, Form PD-47 (Tr. 182) which was read to him and which he signed states in the first sentence, “You are under arrest”; and the trial judge found that he had been arrested. We agree with the finding of the trial court which means that the test was a search incident to a lawful arrest. We also conclude that the search was reasonable since it was obviously necessary to conduct the test as promptly as possible because of the ease with which the evidence could be destroyed by a thorough washing. The simplicity of the test makes it unnecessary to have it conducted by a physician. It is a chemical test not a medical test and was properly administered by a trained police technician. His qualifications were not questioned. Having found that the test was administered pursuant to a valid arrest (for which there was probable cause), the constitutional validity of the test as a valid search is recognized by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It should also be noted that Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) stated:
[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. (Emphasis added.)
Since we find the test was reasonable and was conducted pursuant to a valid arrest we need not go on to find, as the trial court found, that appellant had properly consented to the test.
Ill
With respect to appellant’s claim that he had a right to counsel at the police station when the benzidine test was administered we note: (1) he was advised of his right to counsel; (2) he did not request counsel (as the trial court found); and (3) counsel was not required. The last point was determined in United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) where the Supreme Court held that counsel was required at a lineup but not at
“various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence- at such stages might derogate from his right to a fair trial.” (Emphasis added).
The benzidine test is obviously one of the preparatory steps which is excluded from the Sixth Amendment right to counsel. Since it is constitutionally valid to take an internal blood sample for scientific analysis pursuant to a valid arrest where, as here, there was an urgency to prevent the destruction of evidence, certainly it is permissible to take an external sample of blood by a simple cotton swab. Schmerber v. California, supra, 384 U.S. at 770, 771, 86 S.Ct. 1826. We see no similarity to the situation present in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to the law there announced. If counsel had been present and counselled against submitting to the test, such advice would have been futile because the police were entitled to make the test. Schmerber v. California, supra, 384 U.S. at 765-766, 86 S.Ct. 1826. Lewis v. United States, 127 U.S.App.D.C. 269, 271, 382 F.2d 817, 819 (1967). The trial court so found and we agree.
IV
Finally, we deal with the contention made in appellant’s reply brief that since the Government admits that the benzidine test yields a positive response to substances other than blood the conviction of appellant must be set aside. The Government’s brief states:
“Appellee is constrained to inform this Court that substances other than blood will also yield a positive color reaction, including rust, mud and shoe polish. The initial positive reaction rises to conclusive evidence of the presence of blood only when it is supported by microchemical analysis revealing the presence of hemoglobin, a compound unique to the red corpuscles of vertebrates.” (Emphasis added.) Government’s br. at 8, n.6.
Appellant contends that his counsel did not
have any reason to believe that the positive reaction which resulted could have been caused by any substance other than blood. The technician who conducted the test gave clear and unequivocal testimony as to the nature of the test, but never mentioned this very important fact. The impression created by his testimony was that the test result positively demonstrated the presence of blood on appellant’s penis.
* * * » -X *
The fact-finding process was seriously-tainted by the unqualified assertions of the Government witness and reliance thereon by Government counsel during his closing argument. Since disclosure of all the facts with respect to the test “might have led the jury to entertain a reasonable doubt about appellant’s guilt,” the conviction cannot stand.
There might be some merit to this argument in a different context. What appellant here contends is that at trial the test was considered as proving that appellant’s penis had been exposed to blood. We fail to see how that could in any way be prejudicial to the appellant since at trial he admitted that his penis had been so exposed shortly before the test was administered. At trial in his testimony he attempted to attribute it to another source, and at closing argument his counsel stated, “It could be anybody’s blood.” While this later contention was too broad in view of the evidence of record which narrowed the possibilities to two persons, it did point out, what was not denied, that the test did not prove that it was the blood of the victim in this case. The test was never alleged to prove anything different than what appellant admits, i. e., that his penis had recently been exposed to blood. Since he admitted that, the fact that it was an overstatement to claim that the test alone proved the same thing is in no way prejudicial to him. After such testimony, the only issue was whether the jury would believe the Government’s testimony or appellant’s explanation and the rest of his testimony — their verdict indicates that they believed the Government witnesses. It was well within their province so to find.
Affirmed.
. D.C.Code § 22-501 provides:
Every person convicted of any assault with intent to kill or to commit rape . . . shall be sentenced to imprisonment for not more than fifteen years.
. A He said that he had had relations with other women in the past several days.
Q And did he say whether or not any of those had been on their period?
A He stated that none of them had been.
Tr. 178.
. The benzidine test consists in swabbing the suspected area with cotton that has been saturated with water. The cotton is then immersed in a benzidine solution. “If blood is present you will get a bright bluish-green reaction from the benzidine solution.” Even the most minute quantity of blood will trigger the reaction (Tr. 98). The instant test was administered to the area in “the ridge directly under the helmet [of the penis which] is a general catching place for stains. It doesn’t necessarily or normally come in contact with clothing and so on. So this is the area that I examined” (Tr. 99).
. District Court memorandum opinion, p. 2.
. Appellant’s brief states:
We do not suggest that either the technician or the Government’s trial attorney deliberately withheld the exculpatory facts concerning the test from appellant and his counsel.
. Appellant’s brief states :
This was the impression created at tlie j)retrial suppression hearing as well. Judge Gesell’s opinion states that appellant “arrived at the precinct at C :00 p. m. and was formally charged at 6:25 p. m., after a benzidine test on his penis disclosed presence of blood.”
. Appellant’s brief states :
The technician’s testimony appears at transcript pages 97-100 and 187-188. The following interchange on cross-examination is illustrative:
“Q. And is it not also the ease that your test is not the kind of test that indicates the person from whom the blood came? It really says whether or not you have Hood in the sample?
A Yes sir, that is true.”
(Emphasis supplied) Tr. 100.
. That rust, mud or shoe polish would be present in the small highly protected area where the test was administered is highly unlikely and appellant makes no such claim.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. Daniel King BRAINARD, Appellant.
No. 83-5242.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 10, 1984.
Decided Oct. 4, 1984.
Jake Arbes, Atlanta, Ga. (C. Michael Abbott, Abbott & Arbes, P.C., Atlanta, Ga., on brief), for appellant.
Douglas Cannon, Asst. U.S. Atty., Greensboro, N.C. (Kenneth W. McAllister, U.S. Atty., Greensboro, N.C., Becky M. Strickland, Paralegal Specialist on brief), for appellee.
Before RUSSELL, HALL and CHAPMAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
Daniel King Brainard appeals from his convictions following his second jury trial on multiple' counts of mail fraud, arising from his role in a fraudulent investment scheme. We affirm.
Brainard and three co-defendants, Halton Q. Bittick, Sheldon S. Moss and Sheldon Rothman, were originally indicted on January 28, 1980 on 18 counts of mail fraud, 18 U.S.C. §§ 1341 and 2. Brainard and Bittick were additionally charged with one count of making a materially false and misleading statement to the Securities and Exchange Commission (SEC), in violation of 15 U.S.C. § 78ff and 18 U.S.C. § 2. A superseding indictment filed on February 25, 1980 "deleted Brainard from the SEC count. Moss pled guilty to all charges, while charges against Rothman were dismissed. The first jury trial led to convictions of both Brainard and Bittick on mail fraud counts 3 to 13, 15, and 18, while Bittick was also convicted on the SEC count. Both defendants received concurrent sentences of five years, and Bittick was fined $12,000. On appeal, we reversed and remanded for a new trial, finding that the district court had erred in failing to admit hearsay statements by Moss exculpatory of Brainard and Bittick. United States v. Brainard, 690 F.2d 1117 (4th Cir.1982). Prior to retrial Bittick pled guilty to the SEC count, while the mail fraud counts against him were dismissed pursuant to a plea bargain; he received an eight month sentence and $5,000 fine. Upon retrial, Brainard was again convicted on mail fraud counts 3, 4, 6 to 13, 15, and 18, and received a sentence of 48 months.
I.
The facts of this complex case are recounted in our prior Brainard opinion, 690 F.2d at 1119-21, and need only be briefly discussed here. Brainard and Bittick were co-owners of National Executive Planners, Inc. (NEP), a small investment company located in Greensboro, North Carolina. Moss, a Chicago businessman, engaged Brainard in July 1973 to market investments in Television Marketing Corp. (TVM), an enterprise controlled by Moss, of which Rothman was an officer. TVM supposedly distributed and marketed various consumer products, and offered to investors a return of 12%, with investments secured by the accounts receivable of large retailers such as Sears, Roebuck. TVM was in fact nothing more than a Ponzi scheme concocted by Moss, and the interest to investors was paid by the fresh investments of victims. Over several years TVM became the most significant investment marketed by NEP, and Brainard and his sales personnel persuaded some 1000 investors to put over four million dollars into TVM. The supposed security offered for the investments was worthless, and the scheme collapsed when North Carolina issued a cease and desist order in September 1978 against further sales of TVM.
Brainard did not defend the legitimacy of TVM at trial, and the principal question of fact at trial was whether Brainard was a knowing participant in the scheme or had acted in good faith in selling TVM to his clients.
II.
A. On this appeal Brainard seeks a dismissal or new trial owing to the inadvertent loss of several allegedly crucial exhibits from the first trial through no fault of the defense. Due to the convoluted circumstances of this issue, it is necessary to present the facts at some length. On Mareh 29, 1983 the Clerk of Court for the Middle District of North Carolina sent notice to Brainard’s newly retained counsel and to the government that certain of Brai-nard’s trial exhibits, which had been transmitted to this Circuit with the record on the first appeal, were missing. Attached to that notification was a letter from the clerk’s office of the Fourth Circuit, in which a senior deputy clerk represented that Brainard’s former counsel had claimed to have copies of all defense exhibits, Brainard’s new counsel received the case files from former counsel in March 1983, but did not examine the defense exhibits, allegedly relying on the representation that all exhibits were present. A motion hearing was held prior to trial on May 11, 1983, and defense counsel made no motions with respect to the missing exhibits at that time, Brainard’s retrial commenced on July 6, 1983, and on July 11 defense counsel advised the government that defendant’s former exhibit 35, a videotape of three TVM commercials, was missing. The parties agreed to stipulate to the former existence 0f that exhibit and its content, and said stipulation was duly presented to the jury, The defense failed to present any information concerning other missing exhibits until July 14, when, after the close of the government’s case and after all defense witnesses had testified, defendant moved for dismissal or a new trial on the ground of destruction of evidence. The district judge initially stated that he considered any such claim waived due to delay in presentation. In September 1983, after the jury had rendered its verdict, a post-trial hearing was held concerning the missing exhibits. The parties stipulated that defendant’s former counsel would have testified that he did not claim to have copies of all defense exhibits from the first trial, The senior deputy clerk of the Fourth Circuit testified that the clerk’s office had conducted a thorough investigation and could not locate the missing exhibits. Altogether ten exhibits were alleged by the . defense to be missing and unavailable from other sources. Of these, four are claimed on appeal to have been critical to defendant’s case.
The district court denied defendant’s motions on the grounds of delay in raising the matter of the lost evidence and failure to show prejudice from the loss. We need not decide, on this appeal, whether defendant suffered the requisite prejudice from the loss of the exhibits in question, although we note that defendant’s proof of such prejudice was limited. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982) (defendant required to show that testimony of deported witnesses would have been “material and favorable to the defense”). Rather, we hold that defendant has waived any possible objections arising from the missing exhibits through failure to make a timely investigation and presentation of such claim to the district court. There is no indication of bad faith on the part of the government in this matter, and we may assume as true the allegations of defense counsel that the absence of the copies of the exhibits was not actually realized until the second trial was well under way. Nonetheless, the record clearly shows that counsel had knowledge of the loss of a number of original exhibits some three months prior to trial, and that the files of defendant’s former counsel which purportedly contained copies of such exhibits were available for examination during at least the same period of time. Under such circumstances, counsel could reasonably have been expected to ascertain whether copies of the missing exhibits were actually extant prior to trial.
B. At the second trial, over defendant's objection, the government was permitted to introduce evidence of another investment scheme which Brainard had marketed to one client for Moss prior to embarking on TVM. The earlier scheme, known as Golden West Utilities was similar to TVM in many respects, the principal difference being that Golden West purported to offer as security a second mortgage on undeveloped Arizona land, rather than accounts receivable of major retailers. Golden West came to an abrupt end when Moss was enjoined from selling unregistered securities in September 1972. Brainard was aware that his client had lost the bulk of his investment when Golden West went bankrupt.
Defendant contends that this extrinsic act evidence was improperly introduced as bearing on his character, in particular suggesting a propensity to commit frauds. Such a claim is belied, however, by the government’s admission that Brainard was not personally committing any fraud in connection with Golden West. The government defends the admission of the Golden West evidence as bearing on Brainard’s “knowledge,” a permissible use of extrinsic act evidence under Fed.R.Evid. 404(b). We find that the evidence in question was properly admitted on that basis. To justify admission it was not necessary that the government prove Brainard’s actual knowledge that Golden West was fraudulent; had Brainard actually been serving his clients’ interests in good faith as he claimed, he could have been expected to undertake a more diligent investigation of TVM where he knew that a client had suffered a substantial loss on a previous Moss investment scheme designed in a comparable fashion. Thus, the Golden West evidence was relevant to the credibility of Brainard’s defense, and could properly be admitted. Whether it was unduly prejudicial was a matter for the discretion of the district court under Fed.R.Evid. 403, and that discretion has not been abused. See United States v. Beahm, 664 F.2d 414, 417 (4th Cir.1981); United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert, denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).
C. We perceive no basis for Brainard’s contention that he was impermissibly punished for the exercise of his right to trial because he received a substantially longer sentence than his co-defendant Bittick, who had pled guilty to a single offense prior to trial. The single fact of a disparity in sentences between a defendant who stands trial and a co-defendant who pleads guilty does not require appellate reversal, as has often been recognized. See, e.g. United States v. Melendez, 355 F.2d 914, 917 (7th Cir.1966). The first trial led to convictions of both Brainard and Bittick on the same mail fraud counts, and identical terms of imprisonment followed. After the second trial, however, Brainard had been found guilty of multiple mail fraud counts as before, but Bittick faced sentencing on but a single charge. We are not presented with a situation where both defendants stood convicted of identical charges after retrial.
III.
We find the remaining issues raised by defendant to be without merit.
Accordingly, the judgment of conviction of the defendant is
AFFIRMED.
. Two of these former exhibits, Nos. 5 and 20, allegedly evidenced a relationship between Moss and Sears, Roebuck, supporting Brainard's claim to belief that Moss actually did business with major retailers. No. 35, represented by the defense as the most crucial exhibit, was, as noted above, a videotape of three commercials promoting TVM products, allegedly substantial-ing Brainard’s belief that TVM was a legitimate business. No. 36 was a sales brochure from a factoring house, allegedly indicating why it was more profitable for TVM to seek investments from private investors rather than pay factoring costs. It appears, however, that information comparable to exhibit No. 36 was contained within defendant's exhibit 20-C as well and was thus in evidence at the second trial.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Joseph SHERMAN, Respondent, Appellant, v. James A. HAMILTON, Jr., District Director, Immigration and Naturalization Service, Petitioner, Appellee.
No. 5841.
United States Court of Appeals First Circuit.
Heard Oct. 6, 1961.
Decided Oct. 30, 1961.
Allan R. Rosenberg, Boston, Mass., for appellant.
James C. Heigham, Asst. U. S. Atty., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., was on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from an order of the United States District Court for the District of Massachusetts entered May 12, 1961 upon application of appellee for the enforcement of an administrative subpoena under the provisions of § 235(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 198, 8 U.S.C.A. § 1225(a).
Section 235(a) provides in its pertinent part that any immigration officer “shall have power to require by subpena the attendance and testimony of witnesses before immigration officers * * * relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States.”
This case presents the question of whether § 235(a) empowers an immigration officer to subpoena as a “witness” an alien who is himself the subject of the investigatory proceedings and where the investigation is concededly an initiatory step to possible deportation proceedings against said alien.
On April 11, 1961 the District Director of the Immigration and Naturalization Service, Boston, Massachusetts, caused a subpoena to be served upon appellant — an alien residing in the United States — directing him to appear before an investigator of the Immigration Service on April 18, 1961. The subpoena recited that the appellant was required to attend the hearing “to give testimony in connection with deportation proceeding being conducted under authority of the Immigration and Nationality Act relating to Joseph Sherman (appellant herein) concerning his privilege of entering, reentering, residing in or passing through the United States.”
Appellant appeared in response to the subpoena and after answering certain preliminary questions relating to such matters as the date and place of his birth, the date of his initial entry into the United States in 1920 and the fact that neither he nor his parents had ever become American citizens, thereafter refused to answer substantially all of the questions put to him by the investigator. In the main these questions sought to determine whether the appellant, acting under an assumed name, had left the United States in 1937, traveled to Spain, and, while still utilizing this artifice, had, thereafter, returned to the United States in 1938. When the investigator initially sought to question him on this matter, appellant stated that: “I decline to answer on advice of counsel.” Upon being asked by the investigator to indicate the specific ground upon which he based his refusal, he answered: “On all grounds that are available to me.” The investigator, still attempting to crystallize the specific basis for appellant’s refusal further queried: “By that do you mean that you decline also on the grounds of the Fifth Amendment?” Appellant replied: “Not necessarily. On all the grounds that are available to me.” He maintained this position throughout the remainder of the questioning by use of the phrase “Same answer.”
On April 24, 1961 the appellee acting under § 235(a) filed in the district court an application to enforce the administrative subpoena. This application sought an order directing appellant to appear and testify before the investigator on May 16, 1961. On April 24, 1961 the district court allowed an order returnable May 1,1961 directing appellant to appear and show cause why he should not be required to answer the questions put to him on April 18, 1961. Following this hearing the district court issued an order directing appellant to appear before the investigator “to answer the questions put to him on April 18, 1961 and to answer such other and further questions as may be material to the subject matter of the investigation being conducted.” Appellant has appealed from this order.
In this court, as below, the appellant’s principal contention is based on the premise that under § 235(a) the district court was without authority to order him to appear and testify as a “witness” in an ex parte deportation investigation when he is the person at whom this proceeding is directed. He does not challenge the constitutionality of Congress’ delegation of authority to the Service to issue administrative subpoenas of the type involved here. Rather, it is his position that in seeking to invoke the power to subpoena “witnesses” against an actual party in interest, the power thus sought to be exercised exceeds the statutory grant and it is in this that the mischief lies. In short, he argues that only an impermissive reading of the term witness in § 235(a) would permit its scope to embrace the party whose conduct has generated the subpoena.
Appellant bottoms his argument for a restrictive reading of the term witness in § 235(a) on the decision in United States v. Minker, 1956, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185. We feel that appellant’s reliance on Minker is wholly misplaced.
In Minker the Supreme Court considered the provisions of § 235(a) in the context of whether this section authorized an immigration officer to subpoena— as a witness — -a naturalized citizen who was the subject of an investigation by the Service incident to a possible prospective denaturalization proceeding under § 340(a) of the Act, 8 U.S.C.A. 1450(a).
At the outset the Court conceded that the term “witness” as used in § 235(a) was patently ambiguous and that surely as a matter of pure “English usage” it might fairly be said to embrace any individual — including a party — who gives testimony in a proceeding. However, the Court went on to point out that a more precise assessment of the scope of this “Janus-faced word” could only be supplied by the circumstantial and statutory complex of its context from which it would derive its specific meaning and sustenance. Accordingly, after considering the entire Act the Court held that it could not say that Congress had provided with “sufficient clarity that the subpoena power granted by § 235(a) extends over persons who are the subject of denaturalization investigations.” Id., 350 U.S. 190, 76 S.Ct. 288. And, in the absence of express language to this effect, the Court was unwilling to imply this authority where the rights of a citizen were involved.
However, nothing in Minker invalidated the basic Congressional grant of authority to the Immigration Service to issue administrative subpoenas in cases involving admitted aliens in deportation proceedings. Indeed, the clear thrust of the opinion unmistakably shows that there the restricted reading of the term witness was grounded narrowly on the conspicuous deference accorded the rights of citizens wherever ambiguity presents freedom of choice between competing alternatives. “In such a situation where there is doubt it must be resolved in the citizen's favor. Especially must we be sensitive to the citizen’s rights where the proceeding is nonjudicial * * Id., 350 U.S. 188, 76 S.Ct. 287.
However, in assaying the correct interpretation to be attributed the term witness in the context of a deportation proceeding involving an admitted alien the foregoing considerations of policy which the Court felt gave “coherence to law and are fairly to be assumed as congressional presuppositions” are distinctly absent here. Moreover, the Supreme Court has frequently recognized the significant distinctions to be drawn between the amplitude of Congress’ constitutional power to bar and exclude aliens and that more circumscribed area of activity where the Government seeks to deprive a citizen of his citizenship. Compare, United States v. Ju Toy, 1905, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, with Ng Fung Ho v. White, 1922, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Gonzales v. Landon, 1955, 350 U.S. 920, 76 S.Ct. 210,100 L.Ed. 806. Consequently, we agree with the district court that the Minker case cannot be read as in any wise restricting the power of a district director in a deportation proceeding as contrasted with a denaturalization hearing.
Finding no inhibiting language in Minker, it thus remains to determine whether we can say that Congress has provided with sufficient clarity that — as a “witness” — an alien is subject to administrative subpoena under § 235(a) in an investigatory proceeding concerning his privilege to remain in the United States. Adopting the approach of the Supreme Court that the term “witness” is itself a wholly neutral one whose content can best be derived from its environment and previous history, we find that there are a number of factors which impel us to answer this question in the affirmative.
At the outset it is clear that unlike the denaturalization proceeding involved in Minker where a judicial trial is necessary, exclusion and deportation proceedings involving aliens are primarily and essentially administrative in nature.
Accordingly, in two companion sections of the Act — not specifically dealing with subpoenas — Congress has expressly authorized immigration officers to require aliens to testify in administrative hearings as to their right to remain in this country. Thus § 236(a), 8 U.S.C.A. § 1226(a), dealing with exclusion proceedings, provides that:
“A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses.”
Again in § 242(b), 8 U.S.C.A. § 1252(b) dealing with deportation proceedings, Congress has expressly provided that:
“A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine and cross-examine the alien or witnesses.”
Surely, in the light of these provisions, as the district court pointed out, it would be an exercise in futility for Congress to grant the Service authority to “interrogate, examine and cross-examine” an alien and yet withhold the subpoena power — a most meaningful device for accomplishing this end. To read § 235(a) as excluding the subpoena power against the alien who is the subject of an investigation would be to render sterile these other provisions of the Act.
Secondly, though the present § 235(a) was enacted in 1952 when Congress rewrote the whole body of the statutory immigration and nationality law, it had its genesis in Section 16 of the Immigration Act of 1917, 39 Stat. 874, 885 (former 8 U.S.C. § 152). This section — the immediate predecessor of § 235(a) — concerned the examination of entering aliens by the immigration service. The striking similarity of the two provisions is evident from a comparison of their pertinent words. The 1917 Act gave immigration officials “power to require by subpoena the attendance and testimony of witnesses * * * touching the right of any alien to enter, reenter, reside in or pass through the United States * * *.” The 1952 Act provides “power to require by subpoena the attendance and testimony of witnesses * * * relating to the privilege of any person to enter, reenter, reside in, or pass through the United States.”
In two cases construing § 16 it was held that this section authorized the issuing of a subpoena upon an alien whose potential deportation was the subject of the investigation in connection with which the subpoena was issued. See Loufakis v. United States, 3 Cir., 1936, 81 F.2d 966; Graham v. United States, 9 Cir., 1938, 99 F.2d 746.
We believe that the fact that it has been twice held under predecessor legislation that the word “witness” fairly embraced potential deportees so as to render them subject to administrative subpoena by the Immigration Service is a weighty factor in any attempt to supply meaningful content to the ambiguities inherent in the word. It is a well settled rule of statutory interpretation that when a statute has been the subject of judicial construction and the statute is substantially reenacted, there is a strong indication of an intent to adopt the construction as well as the language of the former enactment. Becker v. General Chain Co., 1 Cir., 1921, 273 F. 419. Cf. Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195.
At the oral argument appellant urged that inasmuch as the term witness stands alone in § 235, it would be anomalous to accept the Government’s position that the term possesses varying meanings so as to embrace an alien defendant in a deportation proceeding but not the citizen defendant in a denaturalization proceeding. However, it is not unusual for the same word to have differing connotations in the same act and surely no canon of statutory construction forecloses courts from attributing to the word the meaning which the legislature intended that it should have in each instance. As has been stated by the Supreme Court: “Where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.” Atlantic Cleaners & Dyers v. United States, 1932, 286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204.
Surely the subject matter of an alien in a deportation case is significantly different from that of the citizen in a denaturalization case and just as surely the scope of the legislative power sought to be exercised in the former far transcends the latter.
Accordingly, we conclude that § 235(a) does empower an immigration officer to subpoena an admitted alien even though he may be the subject of an investigation by the Service looking towards his ultimate deportation.
Appellant’s second contention involves a construction of the Order of the district court. As noted previously, this Order directed appellant “to answer the questions put to him on April 18, 1961 and to answer such other and further questions as may be material to the subject matter of the investigation being conducted.” Appellant fears that a literal reading of the language of the court below would foreclose him from asserting any constitutional right, or legal justification which might be available to him at the subsequent hearing under pain of contempt. As thus construed, he argues that the Order would deprive him of his rights under the Fifth Amendment. The Government, on the other hand, urges that appellant has misconstrued the true meaning and effect of the Order. It contends that instead of foreclosing any rights which might be available to appellant, the Order simply requires him to attend the hearing and either answer the questions there proffered or articulate a specific and meaningful basis for declining to answer the questions. In the alternative, the Government contends that even if the Order is construed as precluding appellant from hereafter asserting any constitutional right or other legal justification, it is not violative of his constitutional rights because the present record fails to disclose any basis upon which appellant could have predicated a claim of the privilege against self-incrimination as a basis for refusing to answer questions put to him. The Government’s argument on this latter point takes the position that the relevant statute of limitations had run on the only apparent offenses to which such questions might relate — offenses involving the fraudulent acquisition or use of passports. |
While the language of the Order is somewhat ambiguous, reference to the court’s accompanying opinion and to the allied papers in the case (National Foundry and Pipe Works v. Oconto Water Supply Co., 1902, 183 U.S. 216, 234, 22 S.Ct. Ill, 46 L.Ed. 157, convinces us that the district judge did not intend to pass on whether the appellant might rely on claimed constitutional rights’ or legal justification for refusing to answer at the subsequent hearing but simply ordered that the appellant submit himself to the investigator for questioning.
Certainly, as a resident alien appellant was within the purview of the Fifth Amendment and entitled to invoke its safeguards. Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576. As such no judicial order could foreclose the appellant from asserting claimed constitutional rights, otherwise available. The Government has suggested in an alternative argument that by failing to crystallize the precise basis of his refusal to answer the questions at the initial hearing, appellant has waived his rights under the Fifth Amendment. We feel that it is unnecessary to determine whether appellant unequivocally waived his right to claim his privilege — a proposition not unfree from doubt — cf. Quinn v. United States, 1954, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. Emspak v. United States, 1955, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997. However, at the initial hearing appellant was a voluntary witness at least in the sense that the administrative subpoena was not compulsory. Accordingly, as appellant was under no compulsion to testify in the initial investigation, it would scarcely seem that he should be required to claim the privilege against compulsory self-incrimination or be deemed to have waived it. Cf. Graham v. United States, supra. Such a result would hardly seem consonant with the well settled policy that “To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every presumption against the waiver of fundamental rights.” Glasser v. United States, 1942, 315 U.S. 60, at page 70, 62 S.Ct. 457, at page 465, 86 L.Ed. 680; Smith v. United States, 1949, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264.
A judgment will be entered affirming the order of the district court.
. The opinion of the district court which accompanied the instant order includes the following paragraph:
“At the oral argument of this petition, counsel for respondent expressed some apprehension that an order of this Court might foreclose claimed constitutional rights of respondent. An examination of the transcript of the hearing held on April 18, 1961 indicated that respondent made no intelligent, intelligible, or otherwise identifiable claim of any particular constitutional right. Hence the fears expressed by counsel at tbe oral argument are premature on the record as it now stands.” [194 F.Supp. 807.]
It is markedly apparent that had the district court intended that its Order “foreclose claimed constitutional rights” of appellant it would scarcely have styled his counsel’s fears on this point as “premature.”
Reinforcing our conclusion in this regard is the following’ statement by the district judge at the show cause hearing referring to any order which he might issue:
“With regard to Paragraph 6 of the application, I assume you made reference to it. any order this Court might issue, if this Court issues an order, would direct him to appear before the Immigration Service and acknowledge or specifically claim the Constitutional or other privilege available to him.”
From all of the foregoing, it is evident that the intent of the Order of the district court was not to foreclose appellant from asserting any constitutional privilege which might be available to him but simply to require that appellant either testify or specify with clarity and particularity, the basis upon which he registers any asserted constitutional privilege or legal justification.
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_const2
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Houshang SHEIKH, Defendant-Appellant.
No. 80-1666.
United States Court of Appeals, Fifth Circuit. Unit A
Sept. 3, 1981.
Rehearing Denied Oct. 6, 1981.
Steven H. Swander, Fort Worth, Tex., for defendant-appellant. ■
Paul Coggins, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
Before RUBIN, RANDALL and TATE, Circuit Judges.
TATE, Circuit Judge:
The defendant Sheikh appeals from his conviction, following trial by jury, on charges of (1) conspiracy to import heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 and § 963, and (2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We find the evidence insufficient to support the jury verdict of guilty on the conspiracy charge and, therefore, reverse the conviction on that charge. However, we affirm the conviction for possession with intent to distribute, finding no reversible error in the defendant’s contentions, inter alia, that severance of the trial with codefendants having antagonistic defenses was improperly denied, and that Fourth Amendment rights were violated by a customs search, 19 U.S.C. § 1582, at an airport port of entry (nearest the final destination of the goods, but not the first port of entry in the United States).
The Facts
On January 22, 1980, a crated package was shipped from Shiraz, Iran, by way of Iran Air, destined for delivery to Denton, Texas. The air waybill (or air consignment note) accompanying the crate listed as the shipper a Mr. Ahmad Javadzadeh and as the consignee a Mrs. Nasren Javadzadeh (“Nasren”). The package first arrived in the United States via Air France at the Houston Intercontinental Airport, was then transferred to American Airlines as per the air way bill, and was then transported by bonded carrier (a subsidiary of American Airlines) instead of by air, pursuant to arrangements made by American Airlines, to the Dallas-Fort Worth Airport (DFW) (the airport of final destination, per the waybill), where the package arrived on January 25, 1980. An American Airlines employee sent to the consignee letter notification of the arrival of the package. Meanwhile, the package remained in the American Airlines in-bond room, where international shipments were stored pending United States Customs inspection. (A primary fourth amendment contention made by the defendant is that although Houston — the airport where the shipment first landed — is a port of entry which is the functional equivalent of the border, the DFW airport — the final waybill destination, to which the goods were transhipped by the American airline to which the goods were transferred by Air France for final carriage to point of destination — cannot be considered as such.)
On January 29, 1980, a customs inspector at DFW opened the crate in order to examine the shipped items — a Koran and its display case. On close inspection, he discovered within the sides of the display case several secret compartments containing what was later determined to be 4.4 pounds of heroin. Drug Enforcement Administration (DEA) agents, who were immediately informed of the discovery, determined to prepare the display case for a controlled delivery. The heroin (except for a 14 gram sample that was returned to a hidden compartment of the display case) was removed from the secret compartments and replaced with Nestle’s chocolate. The plastic bags containing the substitute were coated with a powder that stains the skin an orange color on contact. DEA agents also installed in the display case a beeper device wired to emit rapid beeping sounds upon the opening of the hidden compartments.
On February 5,1980, Nasren, the consignee, picked up the crate and drove from DFW to her apartment in Denton, Texas (the address listed on the air waybill). At approximately midnight of February 6, 1980, DEA agents observed the arrival at the apartment of Hamid Javadzadeh Bijari (“Hamid”), Nasren’s brother. Approximately five minutes after his arrival, Ham-id left the apartment carrying the crate, and he put it in the trunk of his ear. DEA agents then followed him as he drove to a Sambo’s Restaurant in Denton, Texas, where he parked next to a Chevrolet Blazer and then entered the restaurant. Inside he met the defendant Sheikh, and the two returned to the restaurant parking lot. There, Hamid transferred the crate from the trunk of his car to the backseat of Sheikh’s Blazer. Both then entered their respective vehicles and returned to Nasren’s apartment.
At approximately 3:00 a. m. on the morning of February 7, 1980, Sheikh left the apartment and entered the Blazer (with the crate still inside) and headed toward Dallas. DEA agents followed Sheikh to a motel in Greenville, Texas. At no time prior to this stop did DEA agents within the range of the beeper detect a change from the slow beeping sound emitted by the beeper device to that of a rapid beep (which was to be triggered upon the opening of the secret compartments in the display case). Within minutes of his arrival at the motel room, Sheikh removed the display case (the shipping crate had been discarded in a dumpster at a stop en route) from the Blazer and took it inside his motel room. About two minutes later Sheikh returned to the Blazer, this time to remove a tool box. Soon after Sheikh re-entered the motel room, DEA agents detected a change in the slow beeper signal to that of a rapid beeping sound, an indication that the hidden compartments of the display case had been opened. Immediately thereafter, Sheikh exited the mote! room and headed toward the Blazer. However, DEA agents effected his arrest at the door of the Blazer before he could enter. Agents observed at the time of his arrest that Sheikh’s hands were stained the same orange color as the powder used to dust the plastic bags inside the secret compartments of the display case. Hamid and Nasren were arrested later the same day at Nasren’s apartment.
On February 21, 1980, a federal grand jury returned a two-count indictment charging that (1) on or about January 19 and February 7, 1980, Sheikh, Nasren, and Hamid conspired with each other and with others unknown to import heroin into the United States and to possess heroin with the intent to distribute (violations of 21 U.S.C. § 952(a) and § 841(a)(1)) in violation of 21 U.S.C. § 846 and § 963, and (2) on or about February 7, 1980, Sheikh knowingly and intentionally possessed with intent to distribute approximately 4.4 pounds of heroin, in violation of 21 U.S.C. § 841(a)(1).
All three co-indictees were tried together at a jury trial. The jury returned a verdict of guilty as to Sheikh on both counts and found Nasren and Hamid not guilty on the conspiracy charge, the only count upon which these eodefendants were charged. Sheikh was sentenced to ten years on both counts, with the terms to run consecutively. He was also assessed a special parole term of five years on both counts. Sheikh now appeals to this court for review of his convictions.
The Issues
The defendant Sheikh urges reversal of his convictions on the following contentions: (1) the trial court erroneously denied his motions for judgment of acquittal urged on the basis of the insufficiency of the evidence to support the jury verdict of guilty on the conspiracy charge; (2) the trial court erroneously denied his motions for severanee made both pre-trial and during the trial of the three defendants; (3) there was a significant variance between the amount of heroin Sheikh was charged with possessing as set forth in the indictment and the amount proven at trial to have been in his possession; (4) the trial court erred in admitting evidence obtained in violation of the defendant’s Fourth Amendment rights; and (5) the trial court violated his Sixth Amendment right to confrontation by its failure to conduct an inquiry to determine whether the codefendant Hamid justifiably asserted his Fifth Amendment privilege against self-incrimination.
1. The Conspiracy Charge
Sheikh and his codefendants Nasren and Hamid were charged in Count One of the indictment with conspiring with each other and with others unknown to import heroin and to possess heroin with intent to distribute. Sheikh was found guilty of the charged conspiracy despite the acquittal of Nasren and Hamid. Sheikh argues that the district court erred in denying his motions for judgment of acquittal in light of his codefendants’ acquittal and the insufficiency of the evidence to prove that he conspired with “others unknown.” We agree that a judgment of acquittal on the conspiracy conviction should have been granted based on the insufficiency of evidence to support the jury verdict and, therefore, reverse the judgment of conviction on Count One.
The general rule of this circuit is that the conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged coconspirators on trial are acquitted. United States v. Klein, 560 F.2d 1236, 1242 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978); United States v. Peterson, 488 F.2d 645, 651 (5th Cir. 1974); United States v. Musgrave, 483 F.2d 327, 333 (5th Cir. 1973), cert. denied 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). However, a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy. United States v. Klein, supra, 560 F.2d at 1242; United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir. 1977); United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976); United States v. Pena, 527 F.2d 1356, 1365 (5th Cir. 1976), cert. denied 426 U.S. 949, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); United States v. Goodwin, 492 F.2d 1141, 1144-45 (5th Cir. 1974). In the instant case, with the acquittal of Sheikh’s two codefendants, the conspiracy conviction can only be upheld if there is sufficient evidence of the existence of an unnamed, unindicted coconspirator; the indictment (see note 2) having charged the three named defendants with having conspired with one another and “with others unknown” to import heroin from Iran and to possess it with intent to distribute it.
In reviewing the sufficiency of the evidence to support a jury determination of guilty, we are required to consider all the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Where the trial court has denied the defendant’s motion for judgment of acquittal, the evidence must be considered in the most favorable light to the government, in order to determine whether a reasonably minded jury could have concluded that the evidence was consistent with guilt and, in circumstantial evidence cases, inconsistent with every reasonable hypothesis of innocence. United States v. Marable, 574 F.2d 224, 229 (5th Cir. 1978); United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978); United States v. Pruett, supra, 551 F.2d at 1369; United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977). We find that under the evidence a reasonably minded jury must have necessarily entertained a reasonable doubt as to Sheikh’s conspiring with “others unknown.”
The theory advanced by the government in support of the charged conspiracy with “others unknown” is essentially that Sheikh must have had a coconspirator since the package was shipped from Iran after Sheikh had left the country, and it was addressed to the same misspelled “Oake” Street address in Denton, Texas, as found under Nasren’s name in Sheikh’s address book. The following evidence appears in the record relevant to the proof of the existence of a coconspirator in Iran and of a conspiracy: (1) Sheikh knew a Nassir Alloi, who lived near Shiraz, Iran (the city listed on the air waybill as the shipper’s address and from which the package was sent) and whose telephone number was 21507 (the number given on the air waybill as the shipper’s); (2) while in Iran from late December of 1979 until January 17, 1980, Sheikh visited with Alloi; (3) Sheikh called Alloi from the United States on January 29, 1980 (the date that Sheikh became aware that the package addressed to Nasren had arrived at DFW); (4) in September of 1979, Alloi sent to Hamid as gifts three ornamental picture frames, one of which Sheikh expressed a particular interest in and took as his own; (5) in December of 1979, prior to his leaving for Iran, Sheikh made several calls to a number in Iran listed in Sheikh’s address book (directly under the listing for Nassir Alloi) as that of a Nassir Shirazy, who Sheikh claims is not the same person as Nassir Alloi.
The evidence proves at most that Sheikh had in Iran possibly two associates with whom he communicated prior to his trip to Iran, while in Iran, and after learning of the arrival of the package at DFW. Mere association between persons, however, cannot suffice as proof of a conspiracy. United States v. Fitzharris, 633 F.2d 416, 423 (5th Cir. 1980); United States v. White, 569 F.2d 263, 268 (5th Cir. 1978). Nor can suspicion, however strong, serve as proof of a conspiracy. Causey v. United States, 352 F.2d 203, 207 (5th Cir. 1965). While the government need not prove the existence of a formal agreement or otherwise rely on direct evidence to establish a conspiracy, see Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974), it must do more than pile “inference upon inference” upon which to base a conspiracy charge. Causey v. United States, supra, 352 F.2d at 207. Rather, the government must prove beyond a reasonable doubt that the defendant and Alloi, or others unknown, knowingly entered into a conspiracy by which they agreed to import heroin into the United States and to possess it with intent to distribute. See United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977); United States v. Barrera, supra, 547 F.2d at 1255.
Thus, while it is reasonable to speculate, as the government suggests, that Sheikh travelled to Iran to meet Alloi and arrange shipment of the heroin to the United States for distribution, and later called him to confirm that the heroin had been received as per their agreement, such speculation does not constitute proof beyond a reasonable doubt that the person in Iran knowingly agreed or conspired with Sheikh to perform acts with the intent to import heroin into the United States. See United States v. White, supra, 569 F.2d at 268. It is just as reasonable to infer from the evidence that while Sheikh was in Iran he made arrangements to have a person in that country mail to Nasren what the shipper believed to be only a Koran in a display case.
In the absence of evidence inconsistent with the latter hypothesis, or of any evidence from which the jury might infer a knowing agreement by the transhipper to participate in the importation of heroin into the United States, we must reverse the conspiracy conviction on the basis of insufficiency of the evidence. See, e. g., United States v. Fitzharris, supra, 633 F.2d at 422-23; United States v. Caro, supra, 569 F.2d at 416-19; United States v. White, supra, 569 F.2d at 267-68; United States v. Pruett, supra, 551 F.2d at 1368-69; United States v. Barrera, supra, 547 F.2d at 1256-57; United States v. Pena, supra, 527 F.2d at 1364-65.
2. The Severance Issue
At the trial below, Sheikh repeatedly urged — and was each time denied — his motion for severance first presented pretrial. The trial court’s denial of the motion, Sheikh insists, deprived him of his right to a fair trial. Specifically, Sheikh complains that he was subjected to trial alongside codefendants who asserted antagonistic defenses and who, in effect, aided the government in the prosecution of its case against Sheikh. While the issue raised presents an extremely close question of error, we cannot say — under the specific circumstances before us, and especially in light of the trial court’s actions taken to avoid possible prejudice to Sheikh — that he was denied a fair trial by the district court’s denial of severance.
The decision to grant or to deny a motion for severance rests within the sound discretion of the trial court, which will not be overturned on appeal without an affirmative showing of an abuse of discretion. Rule 14 of the Federal Rules of Criminal Procedure, providing for relief from joinder of defendants, has been interpreted to require that prejudice to the defendant attendant to a joint trial be balanced against the interests of judicial economy to determine whether severance ought to be granted. United States v. Garza, 563 F.2d 1164, 1166 (5th Cir. 1977), cert. denied 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). The degree to which prejudice may be lessened by other remedial court action should also be considered. Id. Thus, the complaining party should be granted relief on appeal only upon a showing of compelling prejudice, which the trial court could not alleviate in the absence of severance and which effectively denied the party a fair trial. United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981); United States v. Mota, 598 F.2d 995, 1000 (5th Cir. 1979), quoting United States v. Swanson, 572 F.2d 523, 528 (5th Cir. 1978), cert. denied 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978).
Sheikh attempts to establish compelling prejudice in two respects. First, he claims that his defense at trial was antagonistic to the defenses asserted by his codefendants. Both Sheikh and the codefendant Hamid testified that they drove together in Sheikh’s Blazer from Panama City, Florida (where both lived) to Denton, Texas. Both testified that they rented a car at DFW which Hamid used to drive to Nasren’s to pick up the package while Sheikh remained at the Sambo’s Restaurant in Denton. Neither admitted, however, to having any knowledge of the existence of the hidden heroin or to having any reason to believe the other may have known of the heroin.
Despite the above consistencies, Sheikh contends that the thrust of the defenses was so antagonistic as to deny Sheikh a fair trial in the absence of severance. In essence, Sheikh represented at trial that (1) he agreed to take Hamid to Denton because he, Sheikh, wanted to try out his new Blazer and possibly visit friends in Houston, Texas; (2) it was Hamid’s idea to rent a car (used later to pick up the crated package from Nasren’s apartment) at DFW before going on to nearby Denton; (3) upon their arrival in Denton, it was Hamid who suggested that Sheikh wait at the Sambo’s Restaurant in Denton (where the package was transferred from the rented car to Sheikh’s Blazer) until Hamid returned from Nasren’s apartment (where Hamid picked up the package); and (4) the package belonged to Hamid, who asked Sheikh to take it back to Panama City. Furthermore, Sheikh testified that the envelope of lidocaine (used to cut down cocaine and heroin) found in Sheikh’s wallet at the time of his arrest was given to him by Hamid.
Hamid, on the other hand, testified that (1) he intended to visit Nasren long before he became aware of the existence of the package; (2) Sheikh admitted to having sent the package from Iran to Nasren’s address; (3) Sheikh said he sent packages from Iran to different addresses in the United States in order to insure that they were gotten out of the country successfully; and (4) it was Sheikh’s idea to rent the car for Hamid and then have Hamid pick up the package and meet Sheikh at the Sambo’s Restaurant. Hamid also denied having given Sheikh the envelope of lidocaine. The codefendant Nasren, consistent with her brother’s testimony, defended that it was her understanding that the package sent to her belonged to Sheikh..
The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. United States v. Horton, supra, 646 F.2d at 186; United States v. Marable, supra, 574 F.2d at 231. On appeal, however, the trial judge’s denial of severance may be reversed only on a showing that the defendant suffered “compelling prejudice.” United States v. Horton, supra, 646 F.2d at 186. In the instant case, the crux of the defense of each defendant was that he or she was ignorant of the existence of the heroin in the hidden compartments of the display case. To some extent, then, the defenses were not antagonistic. However, additionally each defendant contended that the crate containing the display case belonged to the other. Undoubtedly, in this respect, the defenses are so antagonistic as to be irreconcilable and mutually exclusive. Nevertheless, we do not find this antagonism sufficient under the particular facts to establish that Sheikh suffered the compelling prejudice that requires reversal of his possessory conviction because of the denial of severance. In so concluding, we emphasize that the essence of the defense of each codefendant — the absence of guilty knowledge — was not antagonistic with that of the other, and that no defendant indicated that he or she knew or believed the other to have had knowledge of "the existence of the heroin. To the contrary, Hamid testified that he had no reason to doubt the veracity of Sheikh’s explanation that it was necessary to send articles from Iran to various addresses in the United States in order to get them safely out of the former country. In addition, the evidence concerning Sheikh’s involvement with the shipments, summarized in our discussion of the sufficiency of the evidence to support the conspiracy conviction, together with the evidence concerning Sheikh’s actions in driving alone to Greenville with the package and, thereafter, in opening it, point so strongly to Sheikh’s possession that there was little, if any, actual prejudice to him in the joinder of his codefendants. The prejudice was to the codefendants, but they did not seek severance and were, indeed, acquitted.
The defendant Sheikh also attempts to establish compelling prejudice resulting from the denial of severance on the basis that his codefendants exhibited at trial an antagonistic attitude toward him. In effect, he claims that he was prosecuted not only by government counsel but also by counsel for Hamid and counsel for Nasren.
The taking of an adversarial stance on the part of counsel for codefendants may generate trial conditions so prejudicial to the codefendant under multiple attack as to deny him a fair trial. See United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973); United States v. Valdes, 262 F.Supp. 474 (D.P.R. 1967). Considering the length of the trial (it lasted approximately three weeks) and the trial judge’s constant efforts to insure that the attorneys for Nasren and Hamid did not themselves act as prosecutors, we do not find that isolated instances of concerted attack as found in the trial court record created the sort of compelling prejudice necessary to warrant a severance.
In sum, after a careful review of the record, we are not left with a definite and firm conviction that the defendant Sheikh may have been prejudiced by the trial court’s refusal to grant the motion for severance made only by Sheikh. See 1 Wright, Federal Practice and Procedure: Criminal § 227 (1969). We reach this conclusion keeping in mind the view that in conspiracy cases persons jointly indicted should ordinarily be tried together. See United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973), cert. denied 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974); 1 Wright, supra, § 223, but see id., § 226. In the face of possibly antagonistic defenses and hostility among codefendants, the trial judge properly and successfully lessened the degree of possible prejudice to Sheikh through careful trial supervision. Under these circumstances, Sheikh was not denied a fair trial.
3. The Variance Between the Indictment and the Evidence Presented at Trial
Sheikh asserts that the trial court erroneously denied his motion for judgment of acquittal on the possession with intent to distribute conviction, charged by Count Two, because of the significant variance between the allegations of that count of the indictment and the proof at trial. Count Two charged Sheikh with possessing, on or about February 7, 1980 (the date of his arrest), with intent to distribute, 4.4 pounds of heroin. At trial, the government proved that Sheikh was found in possession at the time of his arrest of 14 grams (i. e., about one-half ounce, but see note 9) of heroin (i. e., the amount retained in the display case hidden compartments from the original 4.4 pounds of heroin discovered pursuant to the earlier customs search). Although a variance may have existed, we reject the defendant’s contention that the variance is material or warrants a judgment of acquittal on the charge of possession of 4.4 pounds of heroin with intent to distribute.
Not every variance between the indictment and the proof is fatal to a conviction. In order for a variance to be fatal, thus mandating reversal, it must affect the substantial rights of the accused either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or (2) by affording him insufficient protection against reprosecution for the same offense. United States v. Juarez, 573 F.2d 267, 278-79 (5th Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Lambert, 501 F.2d 943, 947-48 (5th Cir. 1974) (en banc). The defendant has failed to prove how the variance in proof of the amount of heroin actually possessed on the date of his arrest affected his substantial rights. There was no variance in proof as to the date of possession and substance possessed. Thus, in the absence of a showing to the contrary, we find the defendant was sufficiently notified of the crime charged to enable him to present a proper defense. Nor is there convincing argument made that the defendant could not successfully plead former jeopardy against reprosecution. We thus hold that the variance between the amount of heroin set forth in the indictment and the amount proved is not fatal and cannot form the basis for reversal of the conviction on Count Two.
Based upon the government’s failure of proof that Sheikh possessed the 4.4 pounds of heroin as charged in the indictment, Sheikh raises a subsidiary evidentiary issue. In particular, he urges as reversible error the trial court’s admission into evidence of testimony of (1) the street level dosage (generally found to be one to two percent pure heroin) equivalent in grams and pounds (96,214 grams or 212 pounds) of the 4.4 pounds of heroin (between 73%-76% pure) found in the display case during the customs search, and (2) the street value (ranging from $50-$100) of a gram of heroin at the street level dosage.
Evidence of the price or the quality of a narcotic possessed is generally relevant to prove intent to distribute. United States v. Palmere, 578 F.2d 105, 108 (5th Cir. 1978), cert. denied, 99 S.Ct. 1026, 439 U.S. 1118, 59 L.Ed.2d 77 (1979).
Thus, the street level dosage equivalent of the 4.4 pounds of heroin proved to have been imported into the United States from Iran was relevant to prove intent to distribute under the conspiracy count (Count One). Moreover, the testimony concerning the level of pure heroin generally found in a street level dosage was relevant to prove intent to distribute on the basis of possession of the 14 grams of heroin found to be 76% pure. The trial court’s admission of the testimony presents no reversible error.
4. The Alleged Fourth Amendment Violations
At trial, the defendant Sheikh objected to the introduction of evidence obtained as the result of (a) the warrantless customs inspection of the package at DFW, (b) the warrantless attachment and use of an electronic beeper inside the package, and (c) the warrantless search of the defendant’s motel room at the time of his arrest. On appeal, the defendant raises as reversible error the trial court’s admission of this evidence, alleged to have been obtained in violation of the defendant’s fourth amendment rights. We find no reversible error.
(a) The Customs Inspection at DFW
The substance of the defendant’s complaint as to the warrantless search at the DFW airport is: Since the air shipment had first entered the United States at the Houston airport port of entry before its transfer to the DFW airport port of entry, a customs search under 19 U.S.C. § 1582 (see note 10) (authorizing routine customs searches upon entry into the United States) was not authorized. Since therefore the search was not made at the functional equivalent of an international border but rather at an inland city to which the package had been shipped following entry into the United States, reasonable suspicion was required to justify the warrantless search. 19 U.S.C. § 482 (see note 14).
On January 29, 1980, customs inspector Cromer opened the crated package (containing the Koran, the display case, and the heroin) while it was stored in the American Airlines in-bound room, an area set aside by the carrier to house international freight that has not yet cleared customs. By way of this warrantless customs inspection, pursuant to which the 4.4 pounds of heroin was discovered, the DEA investigation was set in motion which ultimately led to the defendant’s arrest. Sheikh attempted by a motion to suppress to prevent the government’s introduction of the heroin thus obtained. The trial court denied the defendant’s motion on the basis that the warrantless inspection was authorized by 19 U.S.C. § 1582, 19 C.F.R. § 162, providing for warrantless customs searches of persons, baggage, and merchandise coming into the United States. We agree.
Warrantless searches made at the international borders of the United States are considered reasonable under the Fourth Amendment simply by virtue of the fact that they occur at the border. United States v. Ramsey, 431 U.S. 606, 616-20, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977). Moreover, routine border searches may be conducted regardless of whether customs officials have a reasonable or articulable suspicion that criminal activity is afoot. United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978), cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Himmelwright, 551 F.2d 991, 993-994 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See also Carroll v. United States, 267 U.S. 132,154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). We have held that 19 U.S.C. § 1582 provides statutory authorization for warrantless border searches by customs officials of all persons, baggage, and merchandise entering the United States. United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978). The warrantless border searches do not require either probable cause or individualized suspicion of criminal activity. Id. See also United States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979); United States v. Odland, 502 F.2d 148, 151 (7th Cir. 1974).
The applicability of § 1582 in the case before us thus depends upon whether, for purposes of the warrantless search by the customs officer of the package originating outside the United States, DFW can be considered an international border or its functional equivalent.
The functional equivalent of an international border includes, by way of example, the United States airport that serves as the destination for a nonstop flight from a foreign point. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Himmelwright, supra, 551 F.2d at 993-94. Such an airport is considered the functional equivalent of a border because of (1) the existence of reliable indications that the thing to be searched is of international origin and has not been changed in any way since entering the United States; and (2) the degree of regularity with which searches at the point in question are conducted such that the intrusion is minimal, the existence and function of the checkpoint are known in advance, and there is little discretionary enforcement activity. United States v. Brennan, 538 F.2d 711, 715-16 (5th Cir. 1976). For these same reasons, we consider DFW, under the circumstances here presented, the functional equivalent of a border.
. [20] In the instant case, the air waybill accompanying the package indicated that it was sent from Iran by way of Iran Air. The waybill issued by Iran Air stated the airport of final destination was Dallas DFW, also indicating intermediate transfers at Paris (where it was to be transferred to Air France), and Houston (where Air France was to transfer it to American Airlines for final transit to Dallas DFW airport). The package first arrived in the United States on January 24, 1980, via Air France at the Houston Intercontinental Airport. It was immediately transferred from that Houston freight terminal to the American Airlines freight terminal. American Airlines then shipped the package by truck to its freight terminal at DFW. At all times after the package entered the United States until it was searched at DFW by customs inspector Cromer it remained under a United States customs bond. Prior to the January 29,1980 search at DFW
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_appel1_2_3
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". Your task is to determine what subcategory of private association best describes this litigant.
NATURAL RESOURCES DEFENSE COUNCIL, INCORPORATED; Energy Research Foundation, Plaintiffs-Appellants, v. James WATKINS, Secretary of the Department of Energy; United States Department of Energy, Defendants-Appellees.
No. 91-2655.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 5, 1991.
Decided Jan. 23, 1992.
James Frank Simon, Natural Resources Defense Council, Inc., New York City, argued, for plaintiffs-appellants (Dan W. Reicher, Nancy S. Marks, Katherine Kennedy, Natural Resources Defense Council, Inc., New York City, on brief, for plaintiff-appellant NRDC) and (James S. Chandler, Jr., South Carolina Environmental Law Project, Pawleys Island, S.C., on brief, for plaintiff-appellant Energy Research Foundation).
Ronald Mark Spritzer, Environment & Natural Resources Division, U.S. Dept, of Justice, Washington, D.C., argued (Barry M. Hartman, Acting Asst. Atty. Gen., Scott A. Schachter, Environment & Natural Resources Div., U.S. Dept, of Justice; Robin Henderson, Office of Gen. Counsel, U.S. Dept, of Energy, Washington, D.C.; and Nicks Williams, Office of Chief Counsel, U.S. Dept, of Energy, Aiken, S.C., on brief), for defendants-appellees.
Before ERVIN, Chief Judge, and PHILLIPS and SPROUSE, Circuit Judges.
OPINION
ERVIN, Chief Judge:
The Natural Resources Defense Council, Inc. and the Energy Research Foundation request an injunction and summary declaratory relief to block the Department of Energy’s proposed reopening of a nuclear reactor at the Savannah River Site in South Carolina on the grounds that the operation of the reactor would be in violation of the Clean Water Act. The district court entered summary judgment against the plaintiffs on the issue of standing. We reverse the district court’s imposition of summary judgment and remand the case for a factual hearing on the question of plaintiffs’ standing. We affirm the district court’s refusal to issue a preliminary injunction against operation of the reactor while this matter is pending.
I.
The K reactor at the Savannah River Site (“SRS”) is a nuclear reactor that has been used by the Department of Energy (“DOE”) since 1954 to produce tritium and plutonium for nuclear weapons. The K reactor and two other nuclear reactors at the SRS, the L and P reactors, are currently the nation's only source of tritium. Tritium, an essential component of nuclear fusion or “hydrogen” bombs, gradually decays over time, and thus must be periodi-eally replenished in the weapons in which it is used.
The K, L, and P reactors have been closed since April 1988 for maintenance and safety upgrades. In February 1991, DOE issued a formal decision announcing its plan to restart the K reactor in the Third Quarter of 1991. The restart date has been postponed several times, and current plans are to restart the reactor within the Fourth Quarter of 1991.
The K reactor is cooled by drawing water from the Savannah River, circulating it once through the reactor cooling system, and then discharging the water into Indian Grave Branch, a tributary of the Savannah River that eventually rejoins the river through Steel Creek, approximately six miles from the point of discharge. Pursuant to the Clean Water Act, 33 U.S.C. § 1311, DOE has a National Pollutant Discharge Elimination System (“NPDES”) permit for the K reactor’s cooling water discharge. DOE does not deny that the K reactor consistently violated the thermal limits of its NPDES permit from January 1, 1984 until it was shut down in April 1988, causing substantial environmental damage to approximately 670 acres of wetlands on SRS property. Further, DOE concedes that, if the K reactor is allowed to reopen as scheduled, the resulting effluent will still not meet the standards of the NPDES permit.
DOE is presently constructing a cooling tower that will allow the K reactor to meet the requirements of the NPDES permit. DOE represents that the tower will be completed no later than December 1992, and possibly earlier. Once construction of the tower is completed, the operation of the reactor must be temporarily suspended to allow the cooling system of the reactor to be tied in to the cooling tower. DOE represented to the trial court that this also would be accomplished by December 1992. DOE has pledged not to run the K reactor at over 50% of full power until the cooling tower is completed, but admits that even under this proviso, the effluent will not fall within the NPDES permit’s thermal limitations.
Plaintiffs, the National Resources Defense Council, Inc. and the Energy Research Foundation (collectively, hereinafter, “NRDC”), contend that operation of the K reactor without the cooling tower would cause irreparable damage to the ecological system of the Savannah River. Specifically, NRDC claims that restarting the reactor would destroy the modest recovery that has been made in the 670 acres of wetlands that were previously damaged by the operation of the reactor. Also, NRDC contends that damage will spread to adjoining areas of the wetlands at the rate of up to 10-12 acres per year. Finally, NRDC claims that operation of the reactor will render up to 3000 additional acres of wetlands inhospitable as a habitat for various species of wildlife indigenous to the wetlands.
NRDC brought a citizen suit under the Clean Water Act, 33 U.S.C. § 1365(a), in the United States District Court for the District of South Carolina on June 11, 1990, to block DOE’s reopening of the K reactor before completion of the cooling tower. On June 27, 1991, NRDC filed a motion for declaratory judgment, preliminary injunction, and partial summary judgment. On July 10, 1991, DOE filed a motion for summary judgment on the issue of standing. On August 14, 1991, the district court issued an order concluding that NRDC lacked standing. Noting the probability of appeal, the district court also addressed the preliminary injunction and declaratory relief questions on the merits and declined to issue either form of relief. NRDC appeals on each of these issues.
II.
An association, such as either of the plaintiffs in this case, may have standing to sue in federal courts based either on an injury to the organization in its own right, or as the representative of its members who have been harmed. Maryland Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1250 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 373, 116 L.Ed.2d 325 (1991). In the instant case, there is no allegation that either the Natural Resources Defense Council or the Energy Research Foundation has been harmed in its own capacity; instead, the groups contend that they have representational standing.
An organization has representational standing when: 1) its own members would have standing to sue in their own rights; 2) the interests the organization seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief sought requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 5.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). In this case, the parties contest the first prong of this definition, whether members of the plaintiff organizations would have an individual right to sue under the Clean Water Act with regard to the discharge of the K reactor.
The requirements for individual standing were laid out by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In that case, the Court stated:
[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” ... and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision....”
Id. (citations omitted). In this case, the organizations assert their standing based on affidavits provided by three individual members of the Natural Resources Defense Council.
The trial court entered summary judgment against NRDC on the issue of standing on two grounds. First, the trial court ruled that the members’ affidavits did not allege with sufficient specificity that the affiants utilized portions of the Savannah River which were affected by the K reactor discharge. Second, the trial court held that any environmental damage resulting from the K reactor discharge would be confined to the property limits of the SRS, from which members of the general public were restricted access, and therefore could not confer standing for a citizens’ suit brought by any member of the public.
A.
The trial court’s first assertion is wrong. The Annis and Mareska affidavits (which are substantially the same) allege:
My avocations have long included boating, fishing, and scuba diving. Since 1982 [Mareska affidavit says 1962] I have enjoyed boating daily on the Savannah River both upstream and downstream of the Savannah River Site. As part of our boating excursions, my friends and I used to enjoy picknicking on the sandbars right by the plant and swimming in the River near the plant. For many years I used to fish and scuba dive extensively in the Savannah River both upstream and downstream of the Savannah River Site.... In the past three years, I have continued to boat, swim, and fish in the Savannah river, but not downstream from the new Savannah Bluff Lock and Dam.... The reason that I have stopped these activities is because of the effects of pollution.... I noticed that, although there is an abundance of aquatic plant life upstream from the Site, the River downstream from the Site appears comparatively barren and sterile.
Similarly, the Blumfield affidavit alleges:
For approximately fifteen years, I frequently went boating on the Savannah River, sometimes near the Site, and I have gone boating as far east as Savannah, Georgia. When boating, I have noticed that the Savannah River downstream of the Savannah River Site has an unpleasant color and smell, which is different from the color and smell of the River upstream of the Site. As a result of the pollution on the River, I have not gone boating on the Savannah River for about five years. I would like to go swimming in the River but do not do so because of the pollution. If the Savannah River were cleaned up, I would resume my recreational activities on the River.
The district court ruled that the affiants had not identified the exact locale of their usage as required by the Supreme Court in Lujan v. National Wildlife Fed’n, — U.S. —, 110 S.Ct. 8177, 111 L.Ed.2d 695 (1990). In addition, the court reasoned that because, as stated in the affidavits themselves, no affiant had used the river for recreation downstream from the SRS in three years, despite the fact that the K reactor had been shut down for those three years, the restart of the reactor “would not have any material impact upon their decision not to use the River in the areas along and downstream from SRS.”
The trial court’s reliance on Lujan is misplaced. In Lujan, the Supreme Court held that an affidavit that alleged general use by an affiant of an area comprising approximately two million acres of land, when only 4500 acres within that territory were the subject of the lawsuit, was insufficiently specific to establish standing. Lujan, 110 S.Ct. at 3188. In this case, by contrast, the affiants specifically identified the portion of the river they utilized with reference to the SRS. Here, unlike Lujan, the court is not required to assume any particularized geographical usage by the affiants to establish the injury necessary to confer standing.
Furthermore, the trial court’s implicit “but for” test, which would not confer standing unless the affiants had shown that they had resumed their activities while the K reactor was shut down, was inappropriate. In the first place, the court assumed that any effects caused by the K reactor discharge would immediately disappear, making the area instantly suitable for recreation. However, the evidence is un-controverted that some effects of the thermal pollution caused by the K reactor will take decades to reverse. The fact that the affiants did not return to the vicinity of the SRS immediately upon the shutdown of the K reactor does not mean that their decision to avoid the area was not caused, at least in part, by environmental damage inflicted by the K reactor.
More fundamentally, the “but-for” standard employed by the district court is inappropriately stringent for determining standing under the Clean Water Act. To establish standing to redress an environmental injury, plaintiffs need not show that a particular defendant is the only cause of their injury, and that, therefore, absent the defendant’s activities, the plaintiffs would enjoy undisturbed use of a resource. See Public Interest Research Group, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990), cert. denied, — U.S. —, 112 L.Ed.2d 1100 (1991). Instead, to meet the “fairly traceable” requirement of Valley Forge, plaintiffs must merely show that a defendant discharges a pollutant that “causes or contributes to the kinds of injuries alleged by the plaintiffs.” Id. at 72. From the record in this case, it seems highly probable that polluters other than the DOE substantially contribute to the current polluted state of the Savannah River. This fact, while it may explain why the affiants have not returned to their recreational pursuits on the lower Savannah River, does not deprive the affiants (and, derivatively, NRDC) of standing to sue DOE if it can be shown that the K reactor discharge contributes to the pollution that interferes with the affi-ants’ use of the Savannah River. Consequently, we reverse the district court and hold that, if harmful pollution from the K reactor discharge can be shown in publicly accessible portions of the Savannah River basin, then the members’ affidavits are sufficient to establish standing for NRDC.
B.
This leads to the trial court’s second ground for entering summary judgment against NRDC on the standing issue — that the environmental harm caused by the K reactor discharge is confined to the property of the SRS, from which the public is restricted access. If this is true, then the NRDC’s affiants would not be able to meet the “fairly traceable” requirement for standing under Valley Forge.
The record is clear that at the point that the K reactor effluent ultimately leaves the property of the SRS and reenters the publicly accessible Savannah River, water temperature is within the limits of the NPDES permit. Thus, there are no direct thermal effects on the Savannah River as a result of the K reactor discharge. NRDC, however, argues that destruction of the wetlands on the SRS property would have adverse indirect effects on the river, and thus, on the interests of its members. Specifically, NRDC contends, inter alia, that damage to the wetlands would impact spawning and refuge of several types of commercially and recreationally important fish, with derivative consequences up and down the food chain. Additionally, NRDC argues that the wetlands would cease their important processes of nutrient recycling and organic matter decomposition, with important long-term consequences on the entire river basin.
The district court rejected this argument, characterizing NRDC’s arguments as “speculative” and ruling that “none of the plaintiffs’ affidavits set out specific facts creating a material dispute over thermal impact on wetlands or on the Savannah River and its tributaries.” Slip Op. at 11-12. We disagree. Contrary to the district court’s assertion, we believe that NRDC’s affidavits are sufficient to create a material issue of fact regarding the potential for cognizable harm to the Savannah River. NRDC presented the affidavit of Dr. Daniel Childers, an assistant research professor of marine biology, stating that renewed operation of the K reactor would have certain specific consequences outside the boundary of the SRS. Most significantly, Dr. Childers asserts that “[t]he combination of entrainment losses and reduction in wetland nursery habitat will almost certainly result in lowered numbers of fish in the Savannah River. Impacts of this kind on wetlands adjacent to the river would necessarily result in impacts on the river itself.” While DOE attacks this affidavit as conclu-sory, because Dr. Childers has not personally visited the SRS, Dr. Childers’ conclusions are based on environmental impact studies conducted and published at the behest of DOE.
The conclusions of Dr. Childers are contradicted by several sources in the record, including: 1) the affidavit of Deborah Moore-Shedrow, Manager of the Environmental Sciences Section of the laboratory operated by DOE’s contractor at the SRS, stating that prior studies had detected “[n]o differences ... in the biological communities [in the Savannah River] attributable to SRS operations;” 2) the DOE’s Final Environmental Impact Statement, finding that “no impact should occur to fish populations in the Savannah River;” and 3) the Congressional testimony of Dr. Ruth Patrick, from the Academy of Natural Sciences, who testified before the Senate Armed Services Committee in 1983 that the Savannah River had suffered no adverse consequences from the operation of the SRS.
The district court erred by accepting the conclusions of DOE’s experts over the conclusions offered in the affidavit of Dr. Childers. While it is entirely possible that DOE’s position is correct, the potential for damage to the Savannah River outside the boundaries of the SRS is an issue of fact. Disposition by summary judgment was, therefore, inappropriate. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). NRDC must be given the opportunity to present evidence on this issue in a forum that will enable the finder of fact to evaluate the credibility of the testimony and the relative weight that should be accorded to the conflicting scientific conclusions. Accordingly, we reverse the district court’s grant of summary judgment to DOE on the question of standing and remand the case for a factual hearing on this issue.
III.
As mentioned above, despite dismissing the case for lack of standing, the district court noted “the great likelihood that the court’s ruling on standing will be appealed” and addressed the questions of issuing preliminary injunctive or summary declaratory relief. Slip Op. at 12. The court concluded that neither form of relief was warranted, and NRDC has appealed.
We consider first the denial of a preliminary injunction. In assessing whether preliminary injunctive relief is appropriate in a particular case, a court will consider four factors: 1) the likelihood of irreparable harm to the movant if the preliminary injunction is denied, 2) the likelihood of irreparable harm to the non-movant if the requested relief is granted, 3) the likelihood that the movant will succeed on the merits, and 4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.1977). If the “balance of the harms,” as measured by the first two factors, decidedly favors the plaintiff, then a court should grant a preliminary injunction if the plaintiff raises “grave” issues for resolution. Id. In reviewing the district court’s determination, this court will reverse only for an abuse of discretion. Rum Creek Coal Sales Inc. v. Caperton, 926 F.2d 353, 358 (4th Cir.1991). In this case, while we believe that the district court substantially overstated the harm that would accrue to DOE by imposition of a preliminary injunction, we cannot find that the court’s determination not to issue the preliminary injunction constituted an abuse of discretion.
We believe that it is clear from the record that DOE would suffer negligible harm from the issuance of a preliminary injunction. By its own admission, DOE possesses adequate tritium reserves for current use needs; instead, DOE’s asserted rationale for restarting the K reactor is to establish a five year reserve of tritium, pursuant to the requirements of the 1991 National Weapons Stockpile Memorandum (“NWSM”). While DOE argues that the stockpile itself is a critical element of national security policy, a better interpretation of the stockpile strategy seems to be that the stockpile is intended to be utilized when production is, for some reason, interrupted. Thus, rather than disrupting compliance with the NWSM, a preliminary injunction in this case, issued for environmental reasons, is precisely the type of circumstance that the NWSM envisioned and for which the stockpile was established. This interpretation was implicitly incorporated in the GAO Report, “Decreasing Tritium Requirements and Their Effect on DOE Programs,” p. 6 (The excess tritium supply over demand means “additional time is available to evaluate ... outstanding safety and environmental issues before restarting the Savannah River reactors.”).
Even if DOE could show that an injunction blocking the reopening of the K reactor would seriously compromise national security interests, the Clean Water Act itself allows for a Presidential override. 33 U.S.C. § 1323(a). Under the statute, the President may exempt the K reactor from NPDES requirements if the President finds that “paramount” national security interests are at stake. Given the fact that the Executive Branch possesses ultimate unilateral authority to prevent any compromise to national security concerns, it is difficult to see how DOE could suffer any harm by the imposition of a preliminary injunction.
Citing the case of Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), DOE argues that Presidential override would be unavailable in the present case. Romero-Barcelo concerned the discharge of ordnance by the Navy into the waters surrounding a Puerto Rican island as a consequence of a Navy weapons training program. The Supreme Court upheld a district court ruling requiring the Navy to apply for a NPDES permit, but declining to enjoin the Navy’s operations in the interim. The plaintiffs in that case had argued that the courts lacked authority to decline imposition of injunctive relief in the face of a clear violation of the Clean Water Act. According to the Romero-Barcelo plaintiffs, the Presidential override provision signaled a Congressional intent to permit non-compliance with the law only when “paramount” interests were threatened and only when the President so determined. Allowing the courts to exercise equitable discretion, the plaintiffs argued, would eliminate the role of the Presidential exemption.
Rejecting this argument, the Supreme Court held that the Presidential override provision and the equitable discretion of the courts served differing, complementary purposes. According to the Court, equitable discretion allowed the courts to fashion “relief that will achieve compliance with the Act,” while the Presidential override would permit “noncompliance by federal agencies in extraordinary circumstances.” Id. at 318, 102 S.Ct. at 1806. The Court used as evidence the Executive Order implementing the exemption authority, Exec. Order No. 12,088, 43 Fed.Reg. 47,707 (1978), which requires that the agency requesting Presidential exemption certify that it cannot meet the applicable pollution standards.
Seizing on this passage, DOE argues that Presidential exemption would not be available in this case because compliance is feasible and, in fact, is currently being undertaken by construction of the cooling tower. However, we do not read Romero-Barcelo to stand for the proposition that impossibility of compliance is a prerequisite to the availability of a Presidential exemption. Instead, we believe the Court in Romero-Barcelo was merely illustrating the continuing vitality of the Presidential override, by noting that the override could completely isolate a non-complying federal facility from the purview of the courts. Nothing in that opinion, or in the statutory language it interprets, suggests that the President could not exempt a federal facility that was fully capable, but unwilling, to comply with the limitations of the Clean Water Act.
Even if we were to accept DOE’s argument that impossibility of compliance is necessary for a Presidential exemption, we believe that the exemption would still be available in the present context. In Romero-Barcelo the district court found that the Navy’s operations did not cause any “appreciable harm” to the environment. Thus, the Navy could attain compliance with the Clean Water Act merely by applying for and obtaining a NPDES permit. No cognizable environmental damage would occur in the interim. In the present case, although compliance will eventually be achieved, purportedly by December 1992, substantial environmental damage may occur prior to that time. Thus, from start-up of the reactor until completion of the cooling tower, the period of time for which NRDC seeks an injunction, compliance is indeed impossible.
For the foregoing reasons, we believe that Presidential override is a viable alternative in this case. As a result, we find that there is little likelihood of the harm to national security interests that DOE contends would follow from the issuance of a preliminary injunction.
Nevertheless, it is the plaintiffs who bear the burden of proof in showing that the “balance of harms” favors imposition of injunctive relief. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Thus, in this case, the plaintiff organizations must show a substantial likelihood of environmental damage outside the boundaries of the SRS to warrant issuance of the preliminary injunction. This they have failed to do.
As shown above, NRDC relies exclusively on the Childers affidavit to prove consequences to the Savannah River basin outside the boundaries of the SRS. While we have found this affidavit to be sufficient to raise a material issue of fact regarding NRDC’s standing to litigate this matter, the affidavit, standing alone, is far from sufficient to prove the existence of irreparable environmental damage outside the SRS enclave, particularly in light of the contrary evidence adduced by the DOE. Accordingly, we do not find that the “balance of harms” favors imposition of a preliminary injunction.
Next, under Blackwelder analysis we turn to NRDC’s likelihood of success on the merits. Here, again, NRDC faces the crucial preliminary task of establishing proper standing. Unless the plaintiffs can prove damage outside the SRS, they will not succeed on the merits. Having failed at this stage of the proceedings to prove such harm, NRDC cannot, at this time, claim a likelihood of success on the merits.
Finally, we consider the public interest. We agree with the district court’s observation that “[t]he singular aspect of this case is that the parties’ sharply differing views of the public interest are exactly what gave rise to the case.” Slip Op. at 18. In fact, both parties assert important public policy concerns — environmental preservation by NRDC and national security by DOE. In the face of a conflict between such fundamental interests, determination of which concern is more central to the public interest is not an appropriate function for this court.
We do find persuasive NRDC’s argument that Congress has legislatively resolved the conflict between these interests by explicitly making federal facilities, including those related to national security, subject to the provisions of the Clean Water Act unless exempted by a specific Presidential order. 33 U.S.C. § 1323(a). However, until NRDC can show the relevancy of the Clean Water Act to this case, by establishing their standing to pursue a claim under that statute, they cannot avail themselves of this argument. Accordingly, we find that the public interest does not sufficiently favor either side to affect our analysis on whether a preliminary injunction should issue.
Because, on the record before us, NRDC is unable to prove a likelihood of environmental injury outside the boundaries of the SRS, we do not believe that imposition of a preliminary injunction is justified at this time. We affirm this aspect of the district court’s order.
IV.
Finally, we decline to rule upon the issue of declaratory judgment. There must be a “case or controversy” within the meaning of Article III for declaratory relief to issue. Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945); White v. National Union Fire Ins. Co., 913 F.2d 165, 167 (4th Cir.1990). A “case or controversy” requires that the “plaintiff must have standing.” Mobil Oil Corp. v. Attorney General of Virginia, 940 F.2d 73, 75 (4th Cir.1991).
In this case, while we have held that summary judgment against NRDC on the issue of standing was error, NRDC must still affirmatively establish that it does have standing. Until it can make that showing, no case or controversy exists, and neither this court nor the trial court can resolve the issue of the appropriateness of declaratory relief.
V.
In sum, we reverse the trial court’s imposition of summary judgment against the plaintiffs. We remand the ease to the district court for a factual hearing on the standing issue and, if appropriate, a trial on the merits. We affirm the district court’s denial of a preliminary injunction. We do not, at this time, address the issue of declaratory relief.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. Tritium has a half-life of approximately 12.26 years, resulting in an annual loss of approximately 5.5% of a given quantity.
. Violation of the K reactor’s NPDES permit began on January 1, 1984, when the South Carolina Department of Health and Environmental Control ("DHEC”), renewing DOE’s NPDES permit, altered the terms of the permit to measure water quality at the point of discharge from the K reactor cooling system, rather than at the point where the discharged water crossed the SRS boundary. Realizing that the K reactor could not be brought into immediate compliance with the terms of the new NPDES permit, DHEC entered into a Consent Order with DOE, setting less stringent interim thermal limitations in return for DOE’s commitment to undertake certain environmental impact studies and ameliorative measures pursuant to a specified timetable.
. Construction of the cooling tower is mandated by Amendment #2 to the Consent Order between DOE and DHEC, dated August 31, 1987. The terms of the amendment require completion of the cooling tower by December 31, 1992.
. NRDC derives these figures from environmental impact statements prepared by the DOE at various points in the decision-making process. The numbers were calculated based on full power operation of the K reactor. Because the DOE has committed to operate the reactor at no more than 50% of capacity, it argues that the resulting damage will be quantitatively lower than the initial forecast, but it admits that each type of damage will occur to some degree.
. The record is not clear with regard to whether the K reactor could be operated at a sufficiently reduced level to comply with the NPDES permit. The Natural Resources Defense Council provides the affidavit of one of its senior staff scientists that estimates that the K reactor could be operated at approximately 4-5% of full power capacity while remaining within the limitations of the NPDES permit. The estimate, however, is based solely on extrapolation from the DOE data on full capacity operation, not on empirical testing. DOE offers no estimate on the level of operation that could be attained consistent with the NPDES permit limitations, but did state at oral argument that whatever that level would be, it would not be sufficient to allow production of adequate levels of tritium to determine, as the DOE asserts it must, whether the K reactor can eventually be relied upon as a tritium production facility.
. Neither the parties nor the district court differentiated between the plaintiffs on the issue of standing. We note, however, that the only affidavits alleged to confer representational standing are those provided by members of the Natural Resources Defense Council. We will not rule on the issue because it was not argued before us, but we do mention, for the benefit of the district court, that on the record before us, summary judgment against the Energy Research Foundation would seem appropriate.
. We agree with the Third Circuit’s holding in Powell Duffryn that in the context of standing:
"The requirement that plaintiffs injuries be ‘fairly traceable’ to the defendant's conduct does not mean that plaintiffs must show to a scientific certainty that defendant's effluent, and defendant’s effluent alone caused the precise harm suffered by the plaintiffs.... The ‘fairly traceable’ requirement of the Valley Forge test is not equivalent to a requirement of tort causation.”
913 F.2d at 72 (footnote omitted).
. The affidavit of James Watkins, Secretary of Energy, states, "While, hypothetically, the existing tritium inventory could be depleted and used toward satisfying immediate, non-reserve tritium requirements, the 1991 NWSM requires DOE to develop a reserve tritium inventory.” See also GAO Report, “Decreasing Tritium Requirements and Their Effect on DOE Programs,” pp. 1-2 (“without starting any reactors, sufficient tritium supplies will exist to meet the anticipated needs of the nuclear weapons stockpile for the next several years”). The argument that current tritium reserves are sufficient for the foreseeable needs of the next several years becomes even stronger in light of the Supplemental Affidavits provided by the parties. As a result of the President’s recent nuclear disarmament initiative, tritium demand will decline to an even greater extent than that predicted by the GAO Study. Furthermore, retirement of nuclear weapons may actually increase tritium supply by allowing tritium to be recycled from the retired weapons. As DOE concedes in the Supplemental Affidavit of Steven D. Richardson, Deputy Assistant Secretary of Energy, assuming successful resolution of logistical uncertainties, “DOE expects to be able to meet shortterm tritium requirements without immediate tritium production."
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". What subcategory of private association best describes this litigant?
A. Civic, social, fraternal organization
B. Political organizations - Other than political parties Examples: Civil rights focus; Public Interest - broad, civil liberties focus (ACLU) or broad, multi-issue focus (Common Cause, Heritage Foundation, ADA) or single issue - Environmental ENV, Abortion, etc. (prolife, pro-abortion), elderly, consumer interests: Consumer Federation of America, Consumer's Union, National Railroad Passenger Association; PAC
C. Political party
D. Educational organization - Private, non-profit school
E. Educational organization - Association, not individual school - PTA or PTO
F. Religious or non-profit hospital or medical care facility (e.g., nursing home)
G. Other religious organization (includes religious foundations)
H. Charitable or philanthropic organization (including foundations, funds, private museums, private libraries)
I. Other
J. Unclear
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Appellee, v. John Bradford BARKER, Appellant.
No. 78-1798.
United States Court of Appeals, Eighth Circuit.
Submitted March 15, 1979.
Decided March 21, 1979.
Lowell H. Forte of Terpstra, Wilkinson & Van Home, Cedar Rapids, Iowa, on brief, for appellant.
James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, on brief, for appellee.
Before LAY, ROSS and HENLEY, Circuit Judges.
PER CURIAM.
Defendant was charged by indictment on August 9, 1978, along with one other individual, of conspiring to locate, steal and transport in interstate commerce a John Deere Model 480 forklift tractor (hereinafter the forklift) in violation of 18 U.S.C. §§ 2, 371 and 2313 (Count I), and with transportation of the forklift in violation of 18 U.S.C. § 2312 (Count II). On October 26, 1978 defendant entered a plea of guilty to Count II. The court accepted the plea, imposed a three-year prison sentence, and upon motion by the government dismissed Count I.
Relevant facts shown by the hearing transcript and admitted in defendant’s appellate brief include the following:
(1) Defendant personally stole the forklift from a location in Benton County, Iowa and delivered it to Keith Clark’s sod farm in Linn County, Iowa.
(2) Defendant knew when he stole the forklift it was going to be transported out of Iowa. The forklift was transported from Iowa to Washington state by an unindicted coconspirator. Defendant in his brief emphasizes he did not actually transport the forklift across any state lines, but it is admitted that defendant “seemed to have knowledge that the ultimate disposition of the tractor was through transportation, although the knowledge may have come at a time subsequent to the actual theft of the vehicle.”
(3) Defendant received $500.00 from the sale of the forklift. In his brief defendant claims he did not share in the profits from sale of the stolen forklift, although he states that he was paid for his services in stealing the forklift and that he was subsequently hired to drive the semi-tractor, which had been used to transport the forklift from Iowa to Washington, back to Iowa.
It is established that an unconditional plea of guilty waives all prior infirmities which neither affect the court’s jurisdiction nor the substantive sufficiency of the indictment. Coleman v. Burnett, 155 U.S.App.D.C. 302, 309, 477 F.2d 1187, 1194 (1973); Hopkins v. United States, 344 F.2d 229, 234 (8th Cir. 1965); Michener v. United States, 170 F.2d 973, 975 (8th Cir. 1948). Thus, on direct appeal of a conviction the accused ordinarily cannot be heard to contend that there is no evidence of his guilt.
In this direct appeal defendant contends (1) that all elements of the offense of interstate transportation of a stolen motor vehicle must be present before jurisdiction attaches, (2) one element is that defendant must have transported or wilfully caused the transportation in interstate commerce, (3) the requirement of interstate transportation is not satisfied by some knowledge or even foreseeability of interstate transportation by others if defendant was neither directly involved nor an active assistant in the interstate transportation, and (4) the instant defendant did not transport the forklift across state lines or cause its transportation; thus the elements necessary to establish a violation under 18 U.S.C. § 2312 were not present, jurisdiction did not attach, and the judgment of the district court cannot stand.
Indulging the highly questionable assumption that by couching his attack in jurisdictional terms appellant may on direct appeal question the factual sufficiency of the record to support his conviction, we nevertheless conclude that the judgment of conviction should be affirmed.
While the Supreme Court has suggested that even with certain federal crimes requiring mens rea, a particular offender may be convicted without showing his knowledge of those facts which gave rise to federal jurisdiction, the record before us shows defendant was aware that the vehicle he stole was going to be transported in interstate commerce.
Indeed, the vehicle was stolen by defendant, it was transported in interstate commerce, and defendant specifically admitted guilty knowledge.
At the October 26, 1978 hearing the court read the elements of the indictment and crime including “that you transported or caused to be transported in interstate commerce the stolen vehicle.” And the defendant affirmatively stated that he understood the elements of the offense, and that he was voluntarily pleading guilty, admitting the commission of each element of the offense. The court specifically asked, “When you stole the tractor [forklift] did you have knowledge or understanding that it was going to be sent to the State of Washington, or the west coast; at least out of the State of Iowa?” And defendant answered, “Yes.” The court continued, “And you participated in the theft of this [forklift] knowing this was going to be the ultimate disposition?” Defendant again answered, “Yes.” This clearly is sufficient to show defendant understood and admitted the essential elements of the offense charged including the element of interstate commerce, and to uphold the conviction. Cf. Kress v. United States, 411 F.2d 16, 18 (8th Cir. 1969).
The judgment is affirmed.
. The Honorable Edward J. McManus, Chief United States District Judge for the Northern District of Iowa.
. See United States v. Feola, 420 U.S. 671, 691-96, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); cf. Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1974).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appstate
|
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 "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.
Dewitt DILLON et al., Plaintiffs, Appellees, Cross-Appellants, v. The STATE of MONTANA et al., Defendants, Appellants, Cross-Appellees.
Nos. 78-3422, 78-3495.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 15, 1980.
Decided Dec. 23, 1980.
Thomas J. Lynaugh, Lynaugh, Fitzgerald, Schoppert, Skaggs & Essman, Billings, Mont., for Dillon.
Susan Stratman, Missoula, Mont., on brief; Deirdre Boggs, Sp. Asst. Atty. Gen., Missoula, Mont., for State of Mont.
Before ANDERSON and POOLE, Circuit Judges, and WOLLENBERG, District Judge.
The Honorable Albert C. Wollenberg, Senior United States District Judge for the Northern District of California, sitting by designation.
POOLE, Circuit Judge:
The State of Montana appeals a district court judgment which declared American Indians (Indians) residing on the federally recognized Crow Indian Reservation (Reservation) exempt from Montana’s personal income tax, enjoined collection, and ordered refunds of taxes paid. The court denied exemption status to those Indians whose incomes were earned on the Reservation but who resided elsewhere and they cross appeal. Montana argues that the Tax Injunction Act, 28 U.S.C. § 1341, denies federal jurisdiction over the Indians’ complaint. We agree and accordingly reverse.
I.
The Indians filed this suit in 1973 under 42 U.S.C. § 1983, claiming that the state could not constitutionally tax their income earned on the Reservation. Their complaint sought an injunction prohibiting collection of the state income tax, refund of taxes paid over the last five years, and contained class allegations. Federal subject matter jurisdiction was alleged pursuant to 28 U.S.C. § 1343(3). On June 6, 1976, the district court found that it had jurisdiction.
The court certified the case as a class action with six subclasses. Three of the subclasses included Indians all of whom reside off but earn income on the Reservation. These were grouped by ethnic and tribal characteristics: (1) enrolled Crow, (2) enrolled members of other federally recognized tribes and (3) Indians not enrolled in any tribe. The remaining three subclasses included Indians who reside and earn income on the Reservation and were similarly grouped by ethnic and tribal characteristics.
On cross motions for summary judgment, the district court held that the three subclasses of Indians residing and earning income on the Reservation were exempt from the state income tax while the remaining subclasses residing off the Reservation were subject to the tax. Injunctive, declaratory and refund relief was ordered.
Montana acquiesced in the grant of a tax exemption to Indians in the first subclass-enrolled Crow residing and earning income on the Reservation and has not appealed that portion of the district court’s judgment. The grant of tax exemption to the remaining Reservation resident subclasses and the denial of exemption to the nonresident subclasses is before us by virtue of timely notices of appeal and cross appeal by Montana and the Indians.
The Tax Injunction Act, 28 U.S.C. § 1341, denies federal court jurisdiction to entertain a suit seeking relief from state taxation so long as the state provides a “plain, speedy and efficient remedy” to an aggrieved taxpayer in state courts. As Montana provides such a remedy for challengers of the state income tax, we hold that § 1341 precluded the district court from entertaining this case.
II.
Analysis begins with examination of § 1341. That statute provides:
The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under the State law where a plain, speedy and efficient remedy may be had in the courts of such State.
28 U.S.C. § 1341.
The scope of the jurisdictional bar of § 1341 is broader than its terms immediately indicate. It clearly bars injunctive relief. Decisions of this circuit apply it ■ to suits seeking federal declaratory relief from state taxation. Housing Authority of City of Seattle v. State of Washington, 629 F.2d 1307 (9th Cir. 1980); Mandel v. Hutchinson, 494 F.2d 364, 366 (9th Cir. 1974). In so holding, this court has recognized that any effort to obtain tax exemption or adjustment in federal court interferes with the fiscal operations of the state. Mandel, supra, 494 F.2d at 365-66 & n.1. Section 1341 embodies a strong federal policy of noninterference with state taxation and tax administration. Id. at 366. As a suit for a tax refund inevitably requires a court to interpret state taxing statutes and analyze the ambit of state taxing power, we held in Kelly v. Springett, 527 F.2d 1090 (9th Cir. 1975), that § 1341 jurisdictionally barred a 42 U.S.C. § 1983 suit in federal court which sought a refund of state taxes. Id. at 1093-94.
In this case, also a § 1983 action, the district court enjoined collection of the Montana income tax, declared Indians exempt from payment and ordered the State to make refunds. Our prior decisions, outlined above, indicate that each of these forms of relief implicate § 1341.
The Indians do not dispute the state of the law in this circuit as to injunctive and declaratory relief. Rather, they argue that to the extent our decision in Kelly held refund suits barred by § 1341, that holding must be reconsidered in light of Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). They point to a single sentence in note 14 of the Supreme Court’s opinion, which concluded with these words: “Any further proceedings with respect to refund claims by or on behalf of individual Indians . . ., would not appear to implicate § 1341.” Id. at 475, n. 14, 96 S.Ct. at 1642. Upon careful examination, we are confident that the Court did not intend by this language to overrule the view of this and other circuits that § 1341 withdraws federal jurisdiction over suits for state tax refunds when adequate state remedies exist.
The Moe comment must be viewed in context. The Supreme Court had before it consolidated appeals from a Montana three-judge district court involving that state’s power to impose cigarette sales and various personal property taxes on reservation Indians. Joined as plaintiffs in each appeal were an Indian tribe and class representatives of individual tribal members. Only in the personal property tax case did the complaint include a prayer for refund of taxes paid. The district court found jurisdiction over both tribe and individual plaintiffs. Its only mention of § 1341 with respect to the individual plaintiffs was a sentence in each district court opinion to the effect that jurisdiction was not defeated by that section. See Confederated Salish & Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1305 (D.Mont.1974) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976); Confederated Salish & Kootenai Tribes v. State of Montana, 392 F.Supp. 1325, 1327 (D.Mont.1975) (per curiam), aff’d, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (the personal property tax case).
On appeal, the Supreme Court held that the tribe was not barred by § 1341 and therefore the district court had had jurisdiction. 425 U.S. at 474-75, 96 S.Ct. at 1641-1642. The Court then concluded “all of the substantive issues raised on appeal can be reached by deciding the claims of the Tribe alone ... . ” Id. at 475 n.14, 96 S.Ct. at 1642. Accordingly, the Court did not review the district court's finding of jurisdiction over the individuals as it was unnecessary to do so to resolve the substantive merits. Id. It is particularly noteworthy that the individual refund claims had not been adjudicated in the district court when the Supreme Court acted in Moe. None of the issues which might arise from those actions was before the Court. Indeed, the opinion reminded the district court that the remaining refund actions “must be properly grounded jurisdictionally.” 425 U.S. at 469 n.7, 96 S.Ct. at 1639 n.7.
The Supreme Court was not called upon to consider, and did not consider, the interaction of § 1341 and state tax refund suits initiated in federal court. The justification for jurisdiction over the tribe did not turn on the relief sought by the tribe. Accordingly, the import of the Court’s comment in note 14 ought not be unduly magnified. It was relegated to a footnote designed to reserve a question the Court expressly found it unnecessary to reach. To read one sentence of such dictum as a sweeping reappraisal by the Court of the law of § 1341 as interpreted in the lower federal courts is an invitation which we decline to accept. As that Court has admonished, “this Court does not decide important questions of law by cursory dicta inserted in unrelated cases. Whatever the dictum’s meaning, we do not regard it as decisive .. . . ” See, e. g., Permian Basin Area Rate Cases, 390 U.S. 747, 775, 88 S.Ct. 1344, 1364, 20 L.Ed.2d 312 (1968). Nor do we. We adhere to our holding in Kelly v. Springett, supra, 527 F.2d at 1090.
By enacting § 1341 in 1937, “Congress gave explicit sanction to the pre-existing federal equity practice” to refrain from adjudicating challenges to the legality or constitutionality of a State tax in federal court when a plain, adequate and complete remedy in a state forum was available. Moe, supra, 425 U.S. at 470, 96 S.Ct. at 1640. That practice had its roots in federalism, in the federal government’s “scrupulous regard for the rightful independence of state governments” [Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932)] “and in recognition of the imperative need of a State to administer its own fiscal operations.” Tully v. Griffin Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1975). This equitable bar to jurisdiction was invoked in refund proceedings. See First National Bank v. Board of County Commissioners, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1929). The rule codified in § 1341 “is meant to be a broad jurisdictional impediment to federal court interference with the administration of state tax systems.” United Gas Pipe Line Co. v. Whitman, 595 F.2d 323, 326 (5th Cir. 1979).
The “broad jurisdictional impediment” of § 1341 must be applied to tax refund suits if the concerns of Congress are to be meaningfully effectuated. Were it otherwise, the artful pleader in much state tax litigation could evade § 1341 by praying only for a tax refund. It is unpersuasive to suggest that refund litigation in federal court is any less an “interference with a state’s internal economy” [Moe, supra, 425 U.S. at 470, 96 S.Ct. at 1640] than are injunctive or declaratory proceedings. A suit for a state tax refund would invariably require a federal court to interpret and apply state tax laws. Often, as in this case, these will be laws the state has not yet construed and a federal judge would be left in the always awkward position of deciding for the state what its tax laws are designed to accomplish. Such an interpretation of state law could promote confusion and uncertainty in an area of the state’s vital concern.
The practical effect on state fiscal operations of a federal court’s refund order differs little from the effect of the declaratory or injunctive relief a federal court is clearly forbidden by § 1341 to provide. If the sum to be refunded is large, the effect is obvious. Even if modest, the role of stare decisis in our judicial system means, at least, that the continued ability of the state to tax other taxpayers similarly situated will be drawn into serious doubt.
The balance Congress struck in § 1341 reflects great solicitude for the interests of the state in orderly administration and collection of revenue. Congress concluded that these interests were of such import that so long as state courts are available to hear challenges to state taxes, federal district courts would be unavailable for that purpose. We discern no significant distinction between the intrusiveness of federal injunctive and declaratory proceedings undoubtedly forbidden by § 1341 and that of a tax refund proceeding in federal court. Accordingly, as has every circuit court with whose rulings we are familiar, we continue to hold that § 1341 bars refund actions in federal court when adequate state remedies are available. See United Gas Pipe Line Co. v. Whitman, supra, 595 F.2d at 323; Kelly v. Springett, supra, 527 F.2d at 1090; Bland v. McHann, 463 F.2d 21 (5th Cir. 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973); Gray v. Morgan, 371 F.2d 172, 175 (7th Cir. 1966); Evangelical Catholic Communion, Inc. v. Thomas, 373 F.Supp. 1342, 1344 (D.Vt.1973), aff’d mem, 493 F.2d 1397 (2d Cir. 1974); cf. Ludwin v. City of Cambridge, 592 F.2d 606, 610 n.1 (1st Cir. 1979) (federal courts should refrain generally from interpreting the correctness of state tax assessments).
III.
Section 1341 bars federal relief from state tax collection where the state provides a “plain, speedy and efficient” remedy. 28 U.S.C. § 1341. The district court’s opinion in this case came before the Montana Supreme Court had ruled that an injunction would properly issue to restrain the state from attempting to collect income taxes from reservation Indians over whom the state lacked taxing power. LaRoque v. State, Mont., 583 P.2d 1059 (1978). LaRoque further indicates that an Indian need not pay a disputed tax assessment as a condition for obtaining review in state court of the legality of the tax. Id. We therefore have the benefit of a recent, definitive state court ruling which was not available to the trial court.
The Montana review of taxation, as now declared and approved in LaRoque, is “plain, speedy and efficient” within the meaning of § 1341. See Tully v. Griffin, Inc., supra, 429 U.S. at 75, 97 S.Ct. at 223 (Supreme Court approved New York tax adjustment remedy of declaratory suit during pendency of which tax assessment of the state need not be accepted by taxpayer); Ludwin v. City of Cambridge, supra, 592 F.2d at 609 (similar Massachusetts remedy deemed adequate for § 1341 purposes); Garrett v. Bamford, 582 F.2d 810 (3rd Cir. 1978) (Pennsylvania equitable remedy, created after plaintiff filed suit, adequate for purposes of § 1341 and properly applied to plaintiff). Montana in fact affords substantially identical relief to that a litigant could hope to obtain in a federal district court. It would be anomalous indeed to declare a state tax adjustment remedy inadequate and on that basis permit a plaintiff to proceed in a federal court seeking identical relief. See Mandel v. Hutchinson, supra, 494 F.2d at 367 (state remedy need not be best available or even equal to that available in federal court to be adequate for purposes of § 1341).
Appellants argue that when they filed suit the injunctive remedy sanctioned in LaRoque had not been established as a reasonably certain remedy in Montana. At that time they say, Montana courts were acknowledged to have the power to enjoin state tax collection only when the state tax was clearly illegal; and since, before their suit, no Montana court had declared taxation of reservation Indians clearly illegal, the injunctive remedy was at that time uncertain and therefore inadequate for purposes of § 1341. Therefore, they contend that district court jurisdiction was properly invoked and should still be sustained.
The remedial certainty contemplated by § 1341 is that a state forum be empowered to consider claims that a tax is unlawful and to issue adequate relief. See Tully v. Griffin, Inc., supra, 429 U.S. at 74-76 & n.7, 97 S.Ct. at 223-224 n.7. It is not, as the Indians would have it, certainty that the forum will render a favorable decision or grant the particular relief sought. See id.; Coon v. Teasdale, 567 F.2d 820, 822 (8th Cir. 1977) (per curiam). Remedial certainty does not require that state courts have previously confronted similar facts and rendered therein the relief a plaintiff now seeks.
LaRoque’s holding that Montana courts may entertain claims that state taxation is illegal without first requiring prepayment of the disputed tax and may enjoin collection of taxes if found to be unlawful was neither novel nor unexpected. Before the complaint was filed in this case, suits seeking injunctive and declaratory relief from taxes alleged to be unlawful and unconstitutional had been successfully prosecuted in Montana courts without requirement that the tax be prepaid. See, e. g., Northwest Airlines, Inc. v. Joint City-County Airport Board, 154 Mont. 352, 463 P.2d 470 (1970); Hardin Auto Co. v. Alley, 149 Mont. 1, 422 P.2d 346 (1967). Moreover, since 1891, Montana courts have been empowered by the legislature to enjoin state tax collection when the tax sought to be imposed is illegal or the property sought to be taxed exempt. Mont.Rev. Codes Ann., § 15-1-405. This power has been employed when, as here, taxpayer alleges that state taxation is completely impermissible. See Northwest Airlines, Inc. v. Joint City-County Airport Board, supra, 463 P.2d at 475.
We cannot say that the tax adjustment remedy applied to reservation Indians in LaRoque was an uncertain remedy when the Indians filed their suit in 1973. As that Montana remedy is “plain, speedy and efficient”, § 1341 clearly forbids the relief sought by the Indians’ complaint.
IV.
Even if upon analysis a state remedy is deemed adequate, § 1341 is not an absolute bar to federal jurisdiction in state taxation cases. Two exceptions have evolved, neither of which supports jurisdiction in this case.
A.
The United States and its “instrumentalities” may sue in federal court to challenge state taxation. See Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414 (1966); Housing Authority of City of Seattle v. State of Washington, supra, 629 F.2d at 1310. This circuit had previously indicated that individual Indians who could properly join as co-plaintiffs with the United States in a federal action to enjoin state tax collection could proceed even in the absence of the United States as a party under this federal instrumentality exception to § 1341. See Moses v. Kinnear, 490 F.2d 21, 24-25 (9th Cir. 1975); Aqua Caliente Band of Mission Indians v. Helix Irrigation District, 442 F.2d 1184, 1185-86 (9th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972). The Indians claim entitlement to sue under this exception.
But in Moe, supra, the Supreme Court noted that the federal instrumentality doctrine was not alone enough to permit Indians to avoid the jurisdictional bar of § 1341. 425 U.S. at 471, 96 S.Ct. at 1640. In the wake of Moe, we held the federal instrumentality analysis set forth in Moses and Agua Caliente inapplicable to suits not brought by an Indian tribe. Navajo Tribal Utility Authority v. Arizona Department of Revenue, 608 F.2d 1228, 1233-34 (9th Cir. 1979). That holding is dispositive here.
B.
Another exception to § 1341 is available to Indian tribes by virtue of 28 U.S.C. § 1362. In Moe, the Supreme Court concluded that Congress intended by enactment of § 1362 to allow Indian tribes or governing bodies to raise federal questions in federal court when the United States chose not to do so in their behalf. See Navajo Tribal Utility Authority, supra, 608 F.2d at 1232. The Court construed § 1362 as conferring upon a tribe suing in a federal court the exemption to § 1341 which would have been available to the United States. Moe, supra, 425 U.S. at 474, 96 S.Ct. at 1641. This exception is not available to individual Indians, hence it is not available here. See Navajo Tribal Utility Authority, supra, 608 F.2d at 1233.
C.
At oral argument, the Indians suggested that the opinion in Navajo Tribal Utility Authority at page 1234 left open the possibility that other exceptions to § 1341 might be available to individual Indians. That decision, however, addressed only the “instrumentality” and “co-plaintiff” exceptions we have already considered. It did not purport to recognize any others. The opinion did note that § 1341 would bar a tribal economic enterprise from seeking declaratory and injunctive state tax relief in federal court “even if we assumed the Tribe itself or its individual members, absent § 1362, could reap the benefits of the Moe co-plaintiff rule with respect to § 1341, a question we do not reach.” 608 F.2d at 1234. Such a comment hardly creates a new exception to § 1341 and the Indians have offered no authority or theory establishing a new exception. We do not choose to engage in speculation.
The complaint for injunction and refund fell within the purview of § 1341, and since Montana provides a “plain, speedy and efficient” means for contesting Montana taxes, the district court lacked jurisdiction. Accordingly, the judgment is reversed and the case is remanded with directions to dismiss the complaint.
REVERSED.
. The facts and opinion of the district court are reported at 451 F.Supp. 168 (D.Mont.1978).
. The district court’s summary order cited Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), and McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). The impact of Moe on the district court’s jurisdiction is discussed in the text. Neither Bryan nor McCIanahan are relevant to the federal jurisdictional question, however, as each arose in state court.
. The Indians do not dispute that suits brought under 42 U.S.C. § 1983 are subject to the proscription of § 1341. See Kelly v. Springett, 527 F.2d 1090 (9th Cir. 1975).
. Some have read Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), as authority for the proposition that refund suits in federal court are not barred by § 1341. See, e. g., North American Cold Storage Co. v. County of Cook, 468 F.Supp. 424, 426 (N.D.Ill.1979); Note, Fulton Market Cold Storage Co. v. Cullerton: Limiting Federal Jurisdiction in § 1983 Damage Actions Against Tax Officials, 74 Nw.U.L.Rev. 284, 298 & n.68 (1979). We disagree. In Fulton Market, the Seventh Circuit concluded that a damage suit for allegedly wrongful conduct by tax officials was not barred. Unlike a claim for refund, the court noted that the award of damages did “not pivot upon the construction of some state statute or tax regulation which should more properly be construed by appropriate state courts.” Fulton Market Cold Storage Co., supra, 582 F.2d at 1078. Moreover, the court cited with approval its earlier decision in Gray v. Morgan, supra, holding refund actions subject to § 1341.
. Northwest Airlines involved a challenge to a state statute authorizing local authorities to impose certain taxes on airline operations. The Montana Supreme Court found the statute unconstitutional and enjoined imposition of taxes authorized by it. The case remains indicative of Montana’s willingness to enjoin unlawful tax collection although the taxes invalidated there have subsequently been deemed constitutional. See Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 711 n.3, 92 S.Ct. 1349, 1352 n.3, 31 L.Ed.2d 620 (1972).
. The Supreme Court has indicated that so long as a state provides one “plain, speedy and efficient” tax adjustment remedy, the adequacy of other remedies for purposes of § 1341 need not be considered. See Tully v. Griffin, Inc., supra, 429 U.S. at 76-77 & n.8, 97 S.Ct. at 224 n.8. Accordingly, we express no view on the adequacy of Montana’s other tax adjustment remedies.
. The Indians suggest that note 13 of the Supreme Court’s opinion in Moe leaves open the possibility that the federal instrumentality doctrine as developed in Moses and Agua Caliente remains available to individual Indians. Moe, supra, 425 U.S. at 474 n.13, 96 S.Ct. at 1641 n.13. There is nothing in the footnote to suggest such a conclusion and the text of the Court’s opinion is to the contrary. Id. at 473-74, 96 S.Ct. at 1641-1642.
. 28 U.S.C. § 1362 provides:
The district court shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws or treaties of the United States.
. In light of the absence of jurisdiction, we express no opinion on the substantive issues of Indian tax exemption resolved by the district court.
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:
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songer_casetyp1_6-3
|
B
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 50, BAKERY and CONFECTIONERY WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent.
No. 241, Docket 24293.
United States Court of Appeals Second Circuit
Argued Feb. 15, 1957.
Decided May 23, 1957.
Theophil C. Kammholz, General Counsel, Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Norton J. Come, Franklin C. Milliken, Washington, D. C., for petitioner.
Howard N. Meyer, O’Dwyer & Bernstien, New York City, for respondent.
Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
LUMBARD, Circuit Judge.
The National Labor Relations Board petitions for enforcement of its order directing the respondent, Local 50, Bakery and Confectionery Workers International Union, AFL-CIO, to cease and desist from violating § 8(b) (4) (C) of the National Labor Relations Act as amended, 61 Stat. 136 (1947), 29 U.S.C.A. § 158(b) (4) (C), by picketing the premises of Arnold Bakers, Inc., of Port Chester, New York. The Board found that the picketing was intended to induce and encourage a work stoppage to force Arnold Bakers to recognize or bargain with Local 50 when another labor organization had been certified as the representative of Arnold Bakers’ employees. Because we find no substantial evidence to support the Board’s decision that Local 50’s objective was to force Arnold to recognize or bargain with it and that the picketing was intended to induce a work stoppage, we deny enforcement.
Union rivalry at Arnold Bakers, Inc. has a long history. In February 1943, the New York • State Labor Relations Board conducted a representation election at the plant- in which Local 50 and its rival union, Arnold Bakers Employees Association, an independent, were the contestants. The Association won and in March 1943 was certified by the State Board as the representative.
In 1951 Local 50 began an intensive campaign to replace the Association as bargaining representative. On February 21 a meeting was held between Arnold and several AFL unions including Local 50 and Local 802 of the Bakery Drivers, in which Local 50 unsuccessfully urged Arnold to recognize it as bargaining agent for Arnold’s employees. At a second meeting a few months later, in which the Association participated, the AFL organizations unsuccessfully tried to persuade the Association to affiliate with Local 50. The Association’s representative contended that the employees did not wish to affiliate. The trial examiner found that the AFL organizations intimated picketing might ensue, but no picketing took place.
Through 1952 and 1953 Local 50 persisted in its efforts to persuade the Association to affiliate, but with no success. During the summer of 1954 Local 50 was engaged in an organizational drive in Westchester, and on August 9 at a meeting with the Association it again tried to entice the rival union into affiliating with it and again threatened to picket the plant. The Association, through its president, again refused, and thereafter, on August 12, two pickets appeared in front of Arnold’s plant carrying placards which read
Local 50 Bakery and Confectionery Workers International Union of America Affiliated With American Federation of Labor Wants the Employees of Arnold’s to Join Them to Gain Union Wages, Hours and Working Conditions Help Us to Organize These Employees by Buying Union Baked Products
These pickets patrolled the length of the company’s property line on Travers Avenue, in Port Chester, past the main entrance to the plant and office, and past the entrances to the shipping platform and to the employees’ parking lot.
The pickets were instructed not to speak to employees about union activity, and to tell any truck driver who asked that no strike or lockout was in progress and that he should cross the picket line. The trial examiner found that “the purpose of this picketing was concededly to induce Arnold employees to join Local 50.”
In September, Arnold officials talked several times with Local 50 representatives, and Local 50 urged Arnold to “sign up” with them threatening dire consequences if Arnold should refuse. Arnold did refuse claiming that it could not dictate to its employees which union they should join; none of the threatened consequences followed. The Trial Examiner found that through half of October the picketing “was peaceful, no employee or any employer refused to cross * * * [the picket line], and except for the Robinson-Smiley incident there were no conversations between employees and the pickets or other Local 50 representatives relating to the picketing activity.”
On October 18, 1954, the Association filed a petition with the Board requesting certification. Local 50, because it had no representation among Arnold’s employees, declined to participate. In the election held on November 4, 322 out of Arnold’s 356 employees voted, and 306 of the ballots were for the Association. On November 15, 1954, the Regional Director certified the Association without objection.
The picketing in front of Arnold’s plant continued, however. For the first ten days after certification the pickets carried no placards but on Novembei 26, they presented new signs, which read:
Please Do Not Buy Arnold’s Products Arnold Employees Have Refused to Join Local 50 of the Bakery and Confectionery Workers International Union Affiliated With American Federation of Labor The Working Conditions at Arnold’s Are Below Local 50 Standards in Other Baking Companies Please Buy Bakery Products Made by Members of Bakery & Confectionery Workers Union, A.F.L.
Local 50 claims that whereas its picketing until November 15 may have been to induce Arnold’s employees to join Local 50, its purpose thereafter was only to bring the dispute before the public. The Trial Examiner found that the picketing was the only means of publicity utilized by Local 50, and that since the picketing took place only in front of Arnold’s plant where very few members of the public ever appeared, it was unlikely that publicity was Local 50’s objective.
While the picketing was going on, the pickets frequently talked with Arnold employees about baseball and similar casual matters. However, during December 1954 and January 1955 the pickets spoke to six Arnold employees about joining the union. Typical remarks were: “When are you going to join up with us?”; “If you belonged to our union, you wouldn’t have to work these hours, you would have better hours.”
Toward the end of December 1954 the Regional Director sought an injunction in the District Court for the Southern District of New York under § 10(0 of the Act, 29 U.S.C.A. § 160 (0, alleging he had reasonable cause to believe Local 50 was violating § 8(b) (4) (C). Judge Dawson denied the injunction on January 5, 1955, because he did not think that the picketing was designed to induce or encourage a work stoppage. Douds v. Local 50, D.C.S. D.N.Y.1955, 127 F.Supp. 534, and we affirmed. 2 Cir., 224 F.2d 49. Thereafter the General Counsel brought this proceeding before the Board which issued a cease and desist order.
II. The Board’s Opinion
Both the Board and the Trial Examiner found that the objective was that proscribed by subsection § 8(b) (4) (C) of the Act and that the picketing constituted an inducement to Arnold’s employees to engage in a concerted work stoppage.
On the issue of objective, the Board did not believe Local 50’s claim that its purpose was only to inform the public. The Board and its Examiner found that before certification Local 50’s objective “was to force or require Arnold to recognize or bargain with Local 50 presently as the representative of its employees and that in the absence of evidence to the contrary, it would be presumed that the objective continued.” Our previous decision stated that Local 50’s purpose was only to propagandize Arnold’s employees in order to be certified in a future election. The Board did not agree that this was the Union’s sole objective. Pointing out that such future certification might well be quite improbable until far in the future and that the Act proscribed not merely “the” object but “an object,” the Board summed up its conclusion thusly:
“Did Local 50 harbor a forbidden objective after November 15? Its admitted objective before certification was immediate recognition. Picketing continued after certification. The professed object after certification, information to the public, was viewed with skepticism by both the District Court and the Court of Appeals for the Second Circuit in the injunction proceedings. With no evidence that Local 50 made known any change in its objective after November 15, with its asserted objective repudiated by the courts, with the opportunity for lawful recognition necessarily a remote speculation, the inference seems compelling to us that Local 50 after November 15 did not abandon hope and purpose to emerge at once as the recognized bargaining agent by reason of capitulation to its pressure. The Trial Examiner found that its desire for immediate recognition remained alive and was one of the continued objects of its picketing. We are impelled to agree with the Trial Examiner’s conclusions.”
The second element of illegality — the inducement to a concerted work stoppage ■ — was disposed of by the Trial Examiner with the conclusion that under long established Board authority, picketing was by its very nature a “strike signal” and was of itself an inducement to stop work, regardless of whether such a stoppage did take place. Hence, the Examiner concluded that a finding of specific intent to induce such a work stoppage was unnecessary.
Two members of the Board seemed to take exception to this per se rule, stating that “conceivably, there may be other extraordinary circumstances in which a picket line cannot reasonably be found to induce employees to strike.” But they concluded that this case did not present such circumstances, and specific intent need not be found. A third member agreed with the Trial Examiner on the inevitable inducement of picketing. The fourth member of the Board dissented and argued that the tendency of picketing to induce a work stoppage could be rebutted and that such rebuttal evidence existed here.
We hold that the Board’s findings (1) that picketing was designed to induce and encourage a work stoppage, and (2) that the picketing was for the unlawful objective of forcing Arnold to bargain with Local 50 are not supported by substantial evidence in the record before us.
III. The Objective
The Board’s reasoning, as noted above, relies largely on a presumption of the continuity of a state of affairs in the absence of contrary evidence. Thus, the Board reasoned, since Local 50’s objective before the election was to persuade Arnold to bargain with it, this remained its objective after the election, absent a showing otherwise.
To buttress its application to this case of a presumption of continuity of purposes the Board found that “the record in this case shows that Local 50 had demanded recognition when it was at the same time refusing to participate in an election.” But the last demand for recognition by Local 50 took place in September 1954, whereas the Association filed its petition for an election on October 18 and Local 50 declined to participate on October 21, 1954. We therefore are unable to find any support for the Board’s conclusion, that “Local 50 did not consider the fact that it had not been and could not be designated by the employees through an election a valid argument against its immediate recognition.”
As to the presumption itself, it is undisputed that before the certification election, Local 50 had a dual purpose — to induce Arnold’s employees to join Local 50 and to obtain immediate recognition from Arnold. Both were then reasonably possible. But with the certification on November 15 the situation changed radically, and this the Board ignored. Although persuading employees to join Local 50 was still possible, the certification of the Association made it virtually impossible for Local 50 to induce Arnold to deal with it exclusively for some time, particularly since Arnold had consistently refused during many years of argument and several months of picketing. In the absence of any independent supporting evidence, there is no warrant for the conclusion that Local 50’s original objective of immediate recognition as exclusive bargaining agent survived the certification of the Association. The fact that Local 50 sought recognition at a time when it was lawful to do so should not raise a presumption that it also sought recognition when it had become unlawful to do so.
On the other hand, all the circumstances and evidence point to an objective which is not only more feasible and immediate but also permissible, namely, organizing Arnold’s employees in hope of eventual certification at some future date. The statements to the Arnold employees in December and January, noted above, indicate this.
The Board however, held that although one of Local 50’s objectives was to organize the plant with the hope of eventual certification, it also continued to entertain the additional objective of gaining immediate recognition and that § 8(b) (4) (C) proscribes picketing where merely “an objective” is for a prohibited objective. See N. L. R. B. v. Denver Bldg. & Const. Trades Council, 1951, 341 U.S. 675, 688, 689, 71 S.Ct. 943, 95 L.Ed. 1284. We do not think the statutory phrase “an objective” was properly applied in this case.
Section 8(b) (4) (C) was not intended to deter or terminate all picketing but only that picketing which is decided upon in order to attain an illegitimate end. All other picketing is permissible. Cf. Garner v. Teamsters, etc., Union, 1954, 346 U.S. 485, 499-500, 74 S. Ct. 161, 98 L.Ed. 228; Douds v. Local 50, 224 F.2d at page 51. In the circumstances of this case, it cannot reasonably be found that Local 50 decided to continue the picketing, after certification of the rival union, in order to achieve the illegitimate end of immediate recognition for that goal was clearly out of reach. At most, that could only have been an extremely faint hope accompanying the lawful present objective of gaining membership. Picketing which is obviously for some permissible objective should not be condemned because, arguably, there may also be such a residual hope that a prohibited end will also be realized.
“An objective,” for purposes of § 8(b) (4) (C) should therefore include only those aims the achievement of which can be considered a reason for the picketing. To also include all vague and speculative hopes simply because they may coexist with real and immediate “springs of action” would virtually prohibit all post-certification organizational picketing. Such a result is not in accord either with the letter or the spirit of the Act. See Douds v. Local 50, 224 F.2d at page 51.
IV. Inducement of a Work Stoppage
Nor is there any support in the record for the Board’s conclusion that the picketing constituted an inducement or encouragement of Arnold’s employees “to engage in, a strike or a concerted refusal * * * to use * * * transport * * * or work on any goods.” § 8(b) (4) (C) of the Act.
The Board purported to rely on our opinion in N. L. R. B. v. Business Machine & Office Appliance Mechanics, 2 Cir., 1956, 228 F.2d 553 for the proposition that it is not necessary to find a specific intent to induce a work stoppage where that is “the inevitable result or even the ‘natural and probable consequence.’ ” 228 F.2d at page 560.
The Board stated that “the mere existence of a picket line is in most instances a ‘strike signal,’ ” and that “it is the rare rather than the usual picket line which cannot be said to have this effect.” It therefore seems to have concluded that it could dispense with any evidence to support an inference of “inevitable” or “natural and probable” inducement, and seemed to hold that absent rebuttal evidence, the mere fact of picketing is sufficient to raise a presumption of inducement, which supports a finding of intent to induce a work stoppage.
In the first place, we do not agree that the fact of picketing alone, absent supporting evidence of the surrounding circumstances, should raise any presumptions as to the intent or probable consequence of the picketing. In every case, the issue is whether the picketing is likely to induce a work stoppage in the particular context in which the picketing takes place and there must be some independent evidence supporting the inference of inducement, in addition to the fact of picketing. Any presumptions about consequences from the fact of picketing seem to us to be inconsistent with the approach taken in N. L. R. B. v. Business Machines, supra. See 228 F.2d at page 560.
Moreover, the context in which this picketing occurred, shows clearly that a work stoppage was not the “natural and probable consequence” of this picketing. Nothing said by the pickets, or by the placards after the November 15 certification, urged the Arnold employees or any others to go on strike. Moreover, no employee failed to cross the picket line or ceased work. As a matter of fact it was not shown that any of Arnold’s more than 350 employees was a member of Local 50 — indeed the overwhelming majority, 306 out of the 332 participating, had just voted for the rival union.
The evidence of post-certification activity does show that on several occasions the pickets asked Arnold employees to join Local 50. But this is not evidence of an illegal intent to induce a work stoppage, and post-certification picketing merely for the purpose of soliciting membership is not prohibited.
What we said in N. L. R. B. v. Business Machines, supra, applies equally to the facts here: * * * “It cannot be assumed that a picket line will prevent even unionized employees from crossing it when the union apparently intends that they shall cross and takes steps to make its intent plain. Such an assumption is even more doubtful when it appears * * * that the employees unanimously disregarded the pickets and went to work.” 228 F.2d at page 560.
As we find no substantial evidence in the record to support the crucial findings and conclusions of the Board, enforcement is denied.
. “Sec. 8. * * *
“(b) It shall be an unfair labor practice for a labor organization or its agent
_ * * *
“(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: * * * (O) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9; * * *
. Smiley, a picket, contrary to his instructions, told Robinson, a truck driver making a delivery to Arnold that Arnold was supposed to go on strike and that Local 50 wished Arnold’s employees to join it.
. The same contention had been put forth in the injunction action, and was received with scepticism. See 224 F.2d at page 51.
. As noted, 245 F.2d 545, supra, this court has already passed on this controversy-in an injunction proceeding on a slightly different record. However, we have not considered ourselves bound by that prior decision. That was an appeal from an injunction proceeding before a District Court under § 10(e) of the Act and not only was that record somewhat different, in that the pickets’ comments to Arnold’s employees about joining the union noted, 245 F.2d 545, supra, were not included therein, but our scope of review of the District Court’s opinion is governed by different standards and considerations from those in this proceeding to enforce an order of an administrative agency. Compare Federal Rule of Civil Procedure 52(a), 28 U.S.C.A. with Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Although our conclusions herein are largely the same as in our prior decision, in part because the records in the proceedings are so similar, our present decision is based solely on the record before us and with due regard for the expertise of the Labor Board.
. The cases cited by the Board for applying the presumption are not in point. They both deal with a situation where employees who designated the union as their bargaining agent — in one case about a year prior to the election — would be presumed not to have changed their minds in the absence of any contrary evidence indicating a change. N. L. R. B. v. National Motor Bearing Co., 9 Cir., 1939, 105 F.2d 652; N. L. R. B. v. Piqua Munising Wood Prod. Co., 6 Cir., 1940, 109 F.2d 552. There was no intervening event, such as the certification of another union, which made the original objective both impractical and illegal.
. While the success or failure of the picket line is not determinative of its legality, N. L. R. B. v. Associated Musicians, 2 Cir., 1955, 226 F.2d 900, it is some evidence of the tendency of a picket line to canse a work stoppage, along with other circumstances.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
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sc_decisiondirection
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
SIMMONS v. SOUTH CAROLINA
No. 92-9059.
Argued January 18, 1994
Decided June 17, 1994
Blackmun, J., announced the judgment of the Court and delivered an opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Souter, J., filed a concurring opinion, in which Stevens, J., joined, post, p. 172. Ginsburg, J., filed a concurring opinion, post, p. 174. O’Connor, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 175. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 178.
David I. Bruck, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was M. Anne Pearce.
Rickard A. Harpootlian argued the cause for respondent. With him on the brief were T. Travis Medlock, Attorney General of South Carolina, and Donald J. Zelenha, Chief Deputy Attorney General.
A brief of amici curiae urging affirmance was filed for the State of Idaho et al. by Larry EchoHawk, Attorney General of Idaho, and Lynn E. Thomas, Solicitor General, Grant Woods, Attorney General of Arizona, Daniel E. Lungren, Attorney General of California, John M. Bailey, Chief State’s Attorney of Connecticut, Roland Burris, Attorney General of lilinois, Chris Gorman, Attorney General of Kentucky, Richard R Ieyoub, Attorney General of Louisiana, Joseph R Mazurek, Attorney General of Montana, Fred DeVesa, Attorney General of New Jersey, Michael E. Easley, Attorney General of North Carolina, Mark Barnett, Attorney General of South Dakota, and Dan Morales, Attorney General of Texas.
William, C. Pelster filed a brief for Donna L. Markle et al. as amici curiae.
Justice Blackmun
announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Justice Souter, and Justice Ginsburg join.
This case presents the question whether the Due Process Clause of the Fourteenth Amendment was violated by the refusal of a state trial court to instruct the jury in the penalty phase of a capital trial that under state law the defendant was ineligible for parole. We hold that where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.
I
A
In July 1990, petitioner beat to death an elderly woman, Josie Lamb, in her home in Columbia, South Carolina. The week before petitioner’s capital murder trial was scheduled to begin, he pleaded guilty to first-degree burglary and two counts of criminal sexual conduct in connection with two prior assaults on elderly women. Petitioner’s guilty pleas resulted in convictions for violent offenses, and those convictions rendered petitioner ineligible for parole if convicted of any subsequent violent-crime offense. S. C. Code Ann. §24-21-640 (Supp. 1993).
Prior to jury selection, the prosecution advised the trial judge that the State “[o]bviously [was] going to ask you to exclude any mention of parole throughout this trial.” App. 2. Over defense counsel’s objection, the trial court granted the prosecution’s motion for an order barring the defense from asking any question during voir dire regarding parole. Under the court’s order, defense counsel was forbidden even to mention the subject of parole, and expressly was prohibited from questioning prospective jurors as to whether they understood the meaning of a “life” sentence under South Carolina law. After a 3-day trial, petitioner was convicted of the murder of Ms. Lamb.
During the penalty phase, the defense brought forward mitigating evidence tending to show that petitioner’s violent behavior reflected serious mental disorders that stemmed from years of neglect and extreme sexual and physical abuse petitioner endured as an adolescent. While there was some disagreement among witnesses regarding the extent to which petitioner’s mental condition properly could be deemed a “disorder,” witnesses for both the defense and the prosecution agreed that petitioner posed a continuing danger to elderly women.
In its closing argument the prosecution argued that petitioner’s future dangerousness was a factor for the jury to consider when fixing the appropriate punishment. The question for the jury, said the prosecution, was “what to do with [petitioner] now that he is in our midst.” Id., at 110. The prosecution further urged that a verdict for death would be “a response of society to someone who is a threat. Your verdict will be an act of self-defense.” Ibid.
Petitioner sought to rebut the prosecution’s generalized argument of future dangerousness by presenting evidence that, due to his unique psychological problems, his dangerousness was limited to elderly women, and that there was no reason to expect further acts of violence once he was isolated in a prison setting. In support of his argument, petitioner introduced testimony from a female medical assistant and from two supervising officers at the Richland County jail where petitioner had been held prior to trial. All three testified that petitioner had adapted well to prison life during his pretrial confinement and had not behaved in a violent manner toward any of the other inmates or staff. Petitioner also offered expert opinion testimony from Richard L. Boyle, a clinical social worker and former correctional employee, who had reviewed and observed petitioner’s institutional adjustment. Mr. Boyle expressed the view that, based on petitioner’s background and his current functioning, petitioner would successfully adapt to prison if he was sentenced to life imprisonment.
Concerned that the jury might not understand that “life imprisonment” did not carry with it the possibility of parole in petitioner’s case, defense counsel asked the trial judge to clarify this point by defining the term “life imprisonment” for the jury in accordance with S. C. Code Ann. § 24-21-640 (Supp. 1993). To buttress his request, petitioner proffered, outside the presence of the jury, evidence conclusively establishing his parole ineligibility. On petitioner’s behalf, attorneys for the South Carolina Department of Corrections and the Department of Probation, Parole and Pardons testified that any offender in petitioner’s position was in fact ineligible for parole under South Carolina law. The prosecution did not challenge or question petitioner’s parole ineligibility. Instead, it sought to elicit admissions from the witnesses that, notwithstanding petitioner’s parole ineligibility, petitioner might receive holiday furloughs or other forms of early release. Even this effort was unsuccessful, however, as the cross-examination revealed that Department of Corrections regulations prohibit petitioner’s release under early release programs such as work-release or supervised furloughs, and that no convicted murderer serving life without parole ever had been furloughed or otherwise released for any reason.
Petitioner then offered into evidence, without objection, the results of a statewide public-opinion survey conducted by. the University of South Carolina’s Institute for Public Affairs. The survey had been conducted a few days before petitioner’s trial, and showed that only 7.1 percent of all jury-eligible adults who were questioned firmly believed that an inmate sentenced to life imprisonment in South Carolina actually would be required to spend the rest of his life in prison. See App. 152-154. Almost half of those surveyed believed that a convicted murderer might be paroled within 20 years; nearly three-quarters thought that release certainly would- occur in less than 30 years. Ibid. More than 75 percent of those surveyed indicated that if they were called upon to make a capital sentencing decision as jurors, the amount of time the convicted murderer actually would have to spend in prison would be an “extremely important” or a “very important” factor in choosing between life and death. Id., at 155.
Petitioner argued that, in view of the public’s apparent misunderstanding about the meaning of “life imprisonment” in South Carolina, there was a reasonable likelihood that the jurors would vote for death simply because they believed, mistakenly, that petitioner eventually would be released on parole.
The prosecution opposed the proposed instruction, urging the court “not to allow... any argument by state or defense about parole and not charge the jury on anything concerning parole.” Id., at 37. Citing the South Carolina Supreme Court’s opinion in State v. Torrence, 305 S. C. 45, 406 S. E. 2d 315 (1991), the trial court refused petitioner’s requested instruction. Petitioner then asked alternatively for the following instruction:
“I charge you that these sentences mean what they say. That is, if you recommend that the defendant Jonathan Simmons be sentenced to death, he actually will be sentenced to death and executed. If, on the other hand, you recommend that he be sentenced to life imprisonment, he actually will be sentenced to imprisonment in the state penitentiary for the balance of his natural life.
“In your deliberations, you are not to speculate that these sentences mean anything other than what I have just told you, for what I have told you is exactly what will happen to the defendant, depending on what your sentencing decision is.” App. 162.
The trial judge also refused to give this instruction, but indicated that he might give a similar instruction if the jury inquired about parole eligibility.
After deliberating on petitioner’s sentence for 90 minutes, the jury sent a note to the judge asking a single question: “Does the imposition of a life sentence carry with it the possibility of parole?” Id., at 145. Over petitioner’s objection, the trial judge gave the following instruction:
“You are instructed not to consider parole or parole eligibility in reaching your verdict. Do not consider parole or parole eligibility. That is not a proper issue for your consideration. The terms life imprisonment and death sentence are to be understood in their plan [sic] and ordinary meaning.” Id., at 146.
Twenty-five minutes after receiving this response from the court, the jury returned to the courtroom with a sentence of death.
On appeal to the South Carolina Supreme Court, petitioner argued that the trial judge’s refusal to provide the jury accurate information regarding his parole ineligibility violated the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. The South Carolina Supreme Court declined to reach the merits of petitioner’s challenges. With one justice dissenting, it concluded that, regardless of whether a trial court’s refusal to inform a sentencing jury about a defendant’s parole ineligibility might be error under some circumstances, the instruction given to petitioner’s jury “satisfie[d] in substance [petitioner’s] request for a charge on parole ineligibility,” and thus there was no reason to consider whether denial of such an instruction would be constitutional error in this case. 310 S. C. 439, 444, 427 S. E. 2d 175, 179 (1993). We granted certiorari, 510 U. S. 811 (1993).
II
The Due Process Clause does not allow the execution of a person “on the basis of information which he had no opportunity to deny or explain.” Gardner v. Florida, 430 U. S. 349, 362 (1977). In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility, and by the State’s repeated suggestion that petitioner would pose a future danger to society if he were not executed. Three times petitioner asked to inform the jury that in fact he was ineligible for parole under state law; three times his request was denied. The State thus succeeded in securing a death sentence on the ground, at least in part, of petitioner’s future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative, namely, that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process.
A
This Court has approved the jury’s consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system. See Jurek v. Texas, 428 U. S. 262, 275 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (noting that “any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose”); California v. Ramos, 463 U. S. 992, 1003, n. 17 (1983) (explaining that it is proper for a sentencing jury in a capital case to consider “the defendant’s potential for reform and whether his probable future behavior counsels against the desirability of his release into society”).
Although South Carolina statutes do not mandate consideration of the defendant’s future dangerousness in capital sentencing, the State’s evidence in aggravation is not limited to evidence relating to statutory aggravating circumstances. See Barclay v. Florida, 463 U. S. 939, 948-951 (1983) (plurality opinion); California v. Ramos, 463 U. S., at 1008 (“Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment”). Thus, prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendant’s future dangerousness in their evidence and argument at the sentencing phase; they urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison. Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 4 (1993).
Arguments relating to a defendant’s future dangerousness ordinarily would be inappropriate at the guilt phase of a trial, as the jury is not free to convict a defendant simply because he poses a future danger; nor is a defendant’s future dangerousness likely relevant to the question whether each element of an alleged offense has been proved beyond a reasonable doubt. But where the jury has sentencing responsibilities in a capital trial, many issues that are irrelevant to the guilt-innocence determination step into the foreground and require consideration at the sentencing phase. The defendant’s character, prior criminal history, mental capacity, background, and age are just a few of the many factors, in addition to future dangerousness, that a jury may consider in fixing appropriate punishment. See Lockett v. Ohio, 438 U. S. 586 (1978); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); Barclay v. Florida, 463 U. S., at 948-951.
In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole. The trial court’s refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant’s future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.
B
In Skipper v. South Carolina, 476 U. S. 1 (1986), this Court held that a defendant was denied due process by the refusal of the state trial court to admit evidence of the defendant’s good behavior in prison in the penalty phase of his capital trial. Although the majority opinion stressed that the defendant’s good behavior in prison was “relevant evidence in mitigation of punishment,” and thus admissible under the Eighth Amendment, id., at 4, citing Lockett v. Ohio, 438 U. S., at 604 (plurality opinion), the Skipper opinion expressly noted that the Court’s conclusion also was compelled by the Due Process Clause. The Court explained that where the prosecution relies on a prediction of future dangerousness in requesting the death penalty, elemental due process principles operate to require admission of the defendant’s relevant evidence in rebuttal. 476 U. S., at 5, n. 1. See also id., at 9 (Powell, J., opinion concurring in judgment) (“[Bjecause petitioner was not allowed to rebut evidence and argument used against him,” the defendant clearly was denied due process).
The Court reached a similar conclusion in Gardner v. Florida, 430 U. S. 349 (1977). In that case, a defendant was sentenced to death on the basis of a presentence report which was not made available to him and which he therefore could not rebut. A plurality of the Court explained that sending a man to his death “on the basis of information which he had no opportunity to deny or explain” violated fundamental notions of due process. Id., at 362. The principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today. See also Crane v. Kentucky, 476 U. S. 683, 690 (1986) (due process entitles a defendant to “ ‘a meaningful opportunity to present a complete defense’ ”) (citation omitted); Ake v. Oklahoma, 470 U. S. 68, 83-87 (1985) (where the State presents psychiatric evidence of a defendant’s future dangerousness at a capital sentencing proceeding, due process entitles an indigent defendant to the assistance of a psychiatrist for the development of his defense).
Like the defendants in Skipper and Gardner, petitioner was prevented from rebutting information that the sentencing authority considered, and upon which it may have relied, in imposing the sentence of death. The State raised the specter of petitioner’s future dangerousness generally, but then thwarted all efforts by petitioner to demonstrate that, contrary to the prosecutor’s intimations, he never would be released on parole and thus, in his view, would not pose a future danger to society. The logic and effectiveness of petitioner’s argument naturally depended on the fact that he was legally ineligible for parole and thus would remain in prison if afforded a life sentence. Petitioner’s efforts to focus the jury’s attention on the question whether, in prison, he would be a future danger were futile, as he repeatedly was denied any opportunity to inform the jury that he never would be released on parole. The jury was left to speculate about petitioner’s parole eligibility when evaluating petitioner’s future dangerousness, and was denied a straight answer about petitioner’s parole eligibility even when it was requested.
C
The State and its amici contend that petitioner was not entitled to an instruction informing the jury that petitioner is ineligible for parole because such information is inherently misleading. Essentially, they argue that because future exigencies such as legislative reform, commutation, clemency, and escape might allow petitioner to be released into society, petitioner was not entitled to inform the jury that he is parole ineligible. Insofar as this argument is targeted at the specific wording of the instruction petitioner requested, the argument is misplaced. Petitioner’s requested instruction (“If... you recommend that [the defendant] be sentenced to life imprisonment, he actually will be sentenced to imprisonment in the state penitentiary for the balance of his natural life,” App. 162) was proposed only after the trial court ruled that South Carolina law prohibited a plain-language instruction that petitioner was ineligible for parole under state law. To the extent that the State opposes even a simple parole-ineligibility instruction because of hypothetical future developments, the argument has little force. Respondent admits that an instruction informing the jury that petitioner is ineligible for parole is legally accurate. Certainly, such an instruction is more accurate than no instruction at all, which leaves the jury to speculate whether “life imprisonment” means life without parole or something else.
The State’s asserted accuracy concerns are further undermined by the fact that a large majority of States which provide for life imprisonment without parole as an alternative to capital punishment inform the sentencing authority of the defendant’s parole ineligibility. The few States that do not provide capital sentencing juries with any information regarding parole ineligibility seem to rely, as South Carolina does here, on the proposition that California v. Ramos, 463 U. S. 992 (1983), held that such determinations are purely matters of state law.
It is true that Ramos stands for the broad proposition that we generally will defer to a State’s determination as to what a jury should and should not be told about sentencing. In a State in which parole is available, how the jury’s knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole. States reasonably may conclude that truthful information regarding the availability of commutation, pardon, and the like should be kept from the jury in order to provide “greater protection in [the States’] criminal justice system than the Federal Constitution requires.” Id., at 1014. Concomitantly, nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release.
But if the State rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future, the fact that the alternative sentence to death is life without parole will necessarily undercut the State’s argument regarding the threat the defendant poses to society. Because truthful information of parole ineligibility allows the defendant to “deny or explain” the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury’s attention by way of argument by defense counsel or an instruction from the court. See Gardner, 430 U. S., at 362.
Ill
There remains to be considered whether the South Carolina Supreme Court was correct in concluding that the trial court “satisfie[d] in substance [petitioner’s] request for a charge on parole ineligibility,” 310 S. C., at 444, 427 S. E. 2d, at 179, when it responded to the jury’s query by stating that life imprisonment was to be understood in its “plain and ordinary meaning,” ibid. In the court’s view, petitioner basically received the parole-ineligibility instruction he requested. We disagree.
It can hardly be questioned that most juries lack accurate information about the precise meaning of “life imprisonment” as defined by the States. For much of our country’s history, parole was a mainstay of state and federal sentencing regimes, and every term (whether a term of life or a term of years) in practice was understood to be shorter than the stated term. See generally Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 Calif. L. Rev. 61 (1993) (describing the development of mandatory sentencing laws). Increasingly, legislatures have enacted mandatory sentencing laws with severe penalty provisions, yet the precise contours of these penal laws vary from State to State. See Cheatwood, The Life-Without-Parole Sanction: Its Current Status and a Research Agenda, 34 Crime & Delinq. 43, 45, 48 (1988). Justice Chandler of the South Carolina Supreme Court observed that it is impossible to ignore “the reality, known to the ‘reasonable juror/ that, historically, life-term defendants have been eligible for parole.” State v. Smith, 298 S. C. 482, 489-490, 381 S. E. 2d 724, 728 (1989) (opinion concurring and dissenting), cert. denied, 494 U. S. 1060 (1990).
An instruction directing juries that life imprisonment should be understood in its “plain and ordinary” meaning does nothing to dispel the misunderstanding reasonable jurors may have about the way in which any particular State defines “life imprisonment.” See Boyde v. California, 494 U. S. 370, 380 (1990) (where there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence,” the defendant is denied due process).
It is true, as the State points out, that the trial court admonished the jury that “you are instructed not to consider parole” and that parole “is not a proper issue for your consideration.” App. 146. Far from ensuring that the jury was not misled, however, this instruction actually suggested that parole was available but that the jury, for some unstated reason, should be blind to this fact. Undoubtedly, the instruction was confusing and frustrating to the jury, given the arguments by both the prosecution and the defense relating to petitioner’s future dangerousness, and the obvious relevance of petitioner’s parole ineligibility to the jury’s formidable sentencing task. While juries ordinarily are presumed to follow the court’s instructions, see Greer v. Miller, 483 U. S. 756, 766, n. 8 (1987), we have recognized that in some circumstances “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U. S. 123, 135 (1968). See also Beck v. Alabama, 447 U. S. 625, 642 (1980); Barclay v. Florida, 463 U. S., at 950 (“Any sentencing decision calls for the exercise of judgment. It is neither possible nor desirable for a person to whom the State entrusts an important judgment to decide in a vacuum, as if he had no experiences”).
But even if the trial court’s instruction successfully prevented the jury from considering parole, petitioner’s due process rights still were not honored. Because petitioner’s future dangerousness was at issue, he was entitled to inform the jury of his parole ineligibility. An instruction directing the jury not to consider the defendant’s likely conduct in prison would not have satisfied due process in Skipper v. South Carolina, 476 U. S. 1 (1986), and, for the same reasons, the instruction issued by the trial court in this case does not satisfy due process.
IV
The State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole. The judgment of the South Carolina Supreme Court accordingly is reversed, and the case is remanded for further proceedings.
It is so ordered.
Justice Souter,
with whom Justice Stevens joins, concurring.
I join in Justice Blackmun’s opinion that, at least when future dangerousness is an issue in a capital sentencing determination, the defendant has a due process right to require that his sentencing jury be informed of his ineligibility for parole. I write separately because I believe an additional, related principle also compels today’s decision, regardless of whether future dangerousness is an issue at sentencing.
The Eighth Amendment entitles a defendant to a jury capable of a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be imposed. The Court has explained that the Amendment imposes a heightened standard “for reliability in the determination that death is the appropriate punishment in a specific case,” Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.); see also, e. g., Godfrey v. Georgia, 446 U. S. 420, 427-428 (1980); Mills v. Maryland, 486 U. S. 367, 383-384 (1988). Thus, it requires provision of “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die,” Gregg v. Georgia, 428 U. S. 153, 190 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), and invalidates “procedural rules that ten[d] to diminish the reliability of the sentencing determination,” Beck v. Alabama, 447 U. S. 625, 638 (1980).
That same need for heightened reliability also mandates recognition of a capital defendant’s right to require instructions on the meaning of the legal terms used to describe the sentences (or sentencing recommendations) a jury is required to consider, in making the reasoned moral choice between sentencing alternatives. Thus, whenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been “arbitrarily or discriminatorily” and “wantonly and... freakishly imposed.” Furman v. Georgia, 408 U. S. 238, 249 (1972) (Douglas, J., concurring) (internal quotation marks omitted); id., at 310 (Stewart, J., concurring).
While I join the other Members of the Court’s majority in holding that, at least, counsel ought to be permitted to inform the jury of the law that it must apply, see ante, at 169 (plurality opinion); post, at 174 (Ginsburg, J., concurring); post, at 178 (O’Connor, J., concurring in judgment), I also accept the general rule that, on matters of law, arguments of counsel do not effectively substitute for statements by the court.
“[Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” Boyde v. California, 494 U. S. 370, 384 (1990) (citation omitted).
I would thus impose that straightforward duty on the court.
Because Justice Blackmun persuasively demonstrates that juries in general are likely to misunderstand the meaning of the term “life imprisonment” in a given context, see ante, at 159, 169-170, and n. 9, the judge must tell the jury what the term means, when the defendant so requests. It is, moreover, clear that at least one of these particular jurors did not understand the meaning of the term, since the jury sent a note to the judge asking, “Does the imposition of a life sentence carry with it the possibility of parole?” Ante, at 160,170, n. 10. The answer here was easy and controlled by state statute. The judge should have said no. Justice Blackmun shows that the instruction actually given was at best a confusing, “equivocal direction to the jury on a basic issue,” Bollenbach v. United States, 326 U. S. 607, 613 (1946), and that “there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violated petitioner’s rights. Boyde, supra, at 380. By effectively withholding from the jury the life-without-parole alternative, the trial court diminished the reliability of the jury’s decision that death, rather than that alternative, was the appropriate penalty in this case.
While States are, of course, free to provide more protection for the accused than the Constitution requires, see California v. Ramos, 463 U. S. 992, 1014 (1983), they may not provide less. South Carolina did so here. For these reasons, as well as those set forth by Justice Blackmun, whose opinion I join, the judgment of the Supreme Court of South Carolina must be reversed.
The venire was informed, however, of the meaning of the term “death” under South Carolina law. The trial judge specifically advised the prospective jurors that “[b]y the death penalty, we mean death by electrocution.” The sentencing jury was also so informed. App. 129.
Section 24-21-640 states: “The board must not grant parole nor is parole authorized to any prisoner serving a sentence for a second or subsequent conviction, following a separate sentencing from a prior conviction, for violent crimes as defined in Section 16-1-60.” Petitioner’s earlier convictions for burglary in the first degree and criminal sexual assault in the first degree are violent offenses under § 16-1-60.
Specifically, petitioner argued that under the Eighth Amendment his parole ineligibility was “ ‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than death,’ ” Skipper v. South Carolina, 476 U. S. 1, 4-5 (1986), quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion), and that therefore he was entitled to inform the jury of his parole ineligibility. He also asserted that by withholding from the jury the fact that it had a life-without-parole sentencing alternative, the trial court impermissibly diminished the reliability of the jury’s determination that death was the appropriate punishment. Cf. Beck v. Alabama, 447 U. S. 625 (1980). Finally, relying on the authority of Gardner v. Florida, 430 U. S. 349 (1977), petitioner argued that his due process right to rebut the State’s argument that petitioner posed a future danger to.society had been violated by the trial court’s refusal to permit him to show that a noncapital sentence adequately could protect the public from any future acts of violence by him.
We express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment.
Of course, the fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger. The State is free to argue that the defendant will pose a danger to others in prison and that executing him is the only means of eliminating the threat to the safety of other inmates or prison staff But the State may not mislead the jury by concealing accurate information about the defendant’s parole ineligibility. The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution’s arguments of future dangerousness with the fact that he is ineligible for parole under state law.
In this regard, the State emphasizes that no statute prohibits petitioner’s eventual release into society. While this technically may be true, state regulations unambiguously prohibit work-release and virtually all other furloughs for inmates who are ineligible for parole. See App. 16. As for pardons, the statute itself provides that they are available only in “the most extraordinary circumstances.” S. C. Code Ann. §24-21-950D (1989).
At present, there are 26 States that both employ juries in capital sentencing and provide for life imprisonment without parole as an alternative to capital punishment. In 17 of these, the jury expressly is informed of the defendant’s ineligibility for parole. Nine States simply identify the jury’s sentencing alternatives as death and life without parole. See Ala. Code §13A-5-46(e) (1982); Ark. Code Ann. §5-4-603(b) (1993); Cal. Penal Code Ann. §190.3 (West 1988); Conn. Gen. Stat
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_opinstat
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
THOMAS A. EDISON, Inc., v. BLACKMAN DISTRIBUTING CO., Inc.
No. 270.
Circuit Court of Appeals, Second Circuit.
Aug. 29, 1933.
Palmer & Series, of New York City (William Huck, Jr., and Joseph A. Clossick, both of New York City, of counsel), for appellant.
Clark, Reynolds & Hinds, of New York City (Roger Hinds and Leonard J. Reynolds, both of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff, a New Jersey corporation, brought this action against the defendant, a New York corporation, to recover “the agreed and reasonable value” of goods sold and delivered to the defendant, asking judgment for $20,634.98 and interest thereon from February 1, 1931. The defendant filed an amended answer to the complaint setting forth a separate and distinct defense to the alleged cause of action and four counterclaims. The plaintiff moved to dismiss all four counterclaims on the ground that none of them stated facts sufficient to constitute a cause of action, to dismiss the second counterclaim on the additional ground that it could not properly be interposed in the action, and to strike out the separate defense on the ground that it was insufficient in law upon its face. The District Court, by an order dated July 2, 1931, granted the motion and ordered that all four counterclaims be dismissed and the separate defense stricken out. In an opinion dated July 2, 1931, however, the District Court held that certain of the allegations in the first counterclaim might “form the basis of affirmative relief against the plaintiff,” and accordingly the order of dismissal gave the defendant leave to serve an amended answer in conformity with the directions in the opinion. The defendant filed exceptions to the order, and seasonably interposed a second amended answer, setting forth a single counterclaim, to which the defendant replied. The matter was referred by the court to a referee, who determined that the plaintiff was entitled to recover from the defendant the principal sum of $19,119.47, and that the defendant might set off the principal sum of $2,533:80 on the basis of its counterclaim. Interest was allowed on various fractions of the principal sums from various dates. The District Court confirmed the referee’s report, and judgment was entered for the plaintiff for $19,053.58. The defendant has appealed from the judgment in so far as it dismisses the second, third, and fourth counterclaims set forth in. the first amended answer. The plaintiff has taken a cross-appeal from so much of the judgment as allows the defendant a set-off on the basis of the counterclaim set forth in the second amended answer.
This litigation arises out of an agreement in-the form of a letter sent by the defendant to the plaintiff on February 1, 1929, “to confirm and set forth the terms of the agreement arrived at on January 22, 1929, between yourselves and our company,” and accepted by the plaintiff as expressing the agreement on February 25, 1929. By the terms of this agreement, the plaintiff, a manufacturer of radios and phonographs, appointed the defendant distributor of the plaintiff’s products in a designated territory, and agreed to appoint no other distributor, or to act as its own distributor, within that territory “while this agreement remains in effect.” The defendant might elect to discontinue handling and distributing the plaintiff’s products “at any time during the life of this agreement,” in which ease the plaintiff might appoint other distributors within the territory. The agreement further provided that: “We are to be free, if we so desire, to handle other radio, combination radio and phonograph, and phonograph products, including records, in said territory until June 1, 1930, and we are to advise you on February 1, 1930, whether or not we desire to “continue as distributors of your said products after June 1, 1930. If we advise you on. February 1, 1930, that we desire to continue to act as distributors of your said products, we shall continue, to act as such distributors in said territory, until February 1, 1933, with the understanding that during the period from June 1, 1930, to February 1, 1933, we will agree if you so desire, to handle only Edison radio, combination radio and phonograph, and phonograph products including records, and with the further understanding that if we so elect to extend the term of our distributorship to February 1, 1933, this agreement may be cancelled by either party on six (6) months written notice given at any time after December 1, 1930.”
The defendant duly exercised its option to extend the life of the agreement to February 1, 1933, and agreed, waiving a request from the plaintiff, to handle only Edison products. It is conceded that the defendant became bound to handle only radios and phonographs manufactured by the plaintiff. The parties acted under the agreement for several months during 1930. Other pertinent provisions of the agreement are as follows:
“If you” (the plaintiff) “should elect * * * to cancel this agreement and give us said six months’ notice, you mil, at our option, take over and assume the lease covering the premises occupied by us at 28 West 23rd Street, New York City, which runs to February 1, 1933, and will purchase the furniture and fixtures, reasonably comparable with the present furniture and fixtures, which we have installed in said premises at a price which shall be mutually agreeable, or in the event that the price cannot be mutually agreed upon, a third party, agreeable to both of us, shall be selected .as an arbitrator and the price determined by him shall be final and accepted by both of us and you will make payment for the said furniture and fixtures at the time this agreement terminates. It is further understood that in the event you elect to cancel this agreement and give us the said required notice, you will, upon the termination of the agreement, take back from us all the merchandise of your manufacture and purchased by us from you, which we then have on hand and which is new or saleable in the regular course of business as new, and will pay us for such merchandise the net cost to us of same. * * *
“All prices are to be F. O. B. your factory and the list prices are to be no greater than those made to other distributors; also discounts from list prices and for cash payments to be no less than that given to other distributors. It is also understood that if the prices of your said products are lowered at any time during the period of this agreement, we shall be refunded the difference between the cost to us under new prices and the cost to us under the old prices of any of such products which have been billed to us within the preceding ninety (90) days, which are on hand unsold, whether they are on hand in our establishment or whether they have been delivered to our dealers' and remain on hand unsold by them. * * *
“It is further understood that it is your intention to manufacture and that you will endeavor to have ready to market on or about June 1, 1929, a reasonably complete line of radio sots, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards in accordance with the type of such products, and it is your intention that these list prices shall be reasonably competitive with similar merchandise offered to the public by other manufacturers.”
On June 20, 1930, the defendant by letter indicated some dissatisfaction with the highpriee range of the plaintiff’s products, and asked whether the latter would insist that the defendant comply with the requirement that no other “make” of radio or phonograph should be handled by the defendant. The plaintiff by a letter dated June 25, 1930, replied that, unless the agreement under which the parties were acting should be substantially modified for the benefit of the plaintiff, the requirement that no other “make” might be handled would he insisted on. On July 11, 1930, the defendant by letter referred to the clause of the agreement stating the plaintiff’s “intention” to bring out “a reasonably complete line of radio sets, phonographs or combination phonograph and radio sets to be sold at list prices commencing at or about One hundred and twenty-five dollars ($125.00) and ranging upwards,” and called upon the plaintiff to furnish lower priced sets than had as yet been supplied. Ño answer to this communication appears in the record, but the referee found that the plaintiff had already on July 9, 1930, informed the defendant that it would not manufacture a cheaper linetef merchandise. The referee further found that the plaintiff did not consent to the defendant’s handling other makes, and that on August 6, 1930, the defendant notified the plaintiff that it had taken on and was handling the Clarion radio, which was not manufactured by the plaintiff. However, no protest was made by the plaintiff until nearly three months later, when, on November' 5, 1930, it informed the defendant by letter that the latter’s distribution of the Clarion radio “breaches in a vital respect your agreement with us” and that “we therefore notify you that our agreement is at an end.” To this letter the defendant replied on November 7, 1930, that: “We do not consider that your letter is proper notice to us of your cancellation of this agreement, and this is to advise you that we do not accept it as sueh.”
The goods for the agreed value of which this action is brought were all sold by the plaintiff to the defendant after the notice of cancellation of the agreement by the plaintiff and rejection of such notice by the defendant referred to above. These goods were sold pursuant to an offer by the plaintiff contained in a letter sent November 12¡, 1930, which made no reference to prior dealings or disputes between the parties, and was couched in the most cordial, not to say familiar, terms, and extended best wishes for “a bang-up holiday business.” This offer was accepted by the defendant in a letter dated November 22, 1930, and, accordingly the merchandise for the price of which this action is brought was delivered to the defendant by the plaintiff. The defendant admits that it is indebted to the plaintiff for this merchandise in an amount exceeding $17,000.
We shall deal first with the appeal taken by the defendant from the order and judgment of the District Court in so far as they dismiss the second, third, and fourth counterclaims set forth in the first amended answer.
Second Counterclaim.
The second counterclaim attempts to set forth a cause of action in tort for deceit. It alleged:
(1) That in order to induce the defendant to enter into the agreement, the plaintiff “falsely and fraudulently represented to the defendant and covenanted with the defendant * * * that it would manufacture and sell to the defendant a reasonably complete line of radio sets and other products to be sold at list prices commencing at or about $125.00 and ranging upwards in accordance with the type of such products, but being a cheaper line than the existing line of plaintiff’s products * *
(2) That the plaintiff after making the agreement “in order to deceive and defraud the defendant * * * falsely and fraudulently represented * * * that it was going to continue in the manufacture and sale of the radio sets; that it would not ‘dump’ its products and that it was in the business ‘for a long pull.’ ”
The second counterclaim also alleged that the “representations were false and were known to the plaintiff to be false when made and were made by the plaintiff with intent to deceive and defraud defendant by inducing the defendant * * to continue to purchase and stock plaintiff’s products which plaintiff had already manufactured and had on hand”; and alleged that defendant, “relying on the truth of such representations was induced to and did spend large sums of moneys for plaintiff’s goods, for advertising, advances to a large sales force, for credits and for promotion work, and refrained from carrying on other business which it could have engaged in for profit.” Finally, it alleged that the plaintiff fraudulently commenced to “dump” its radio sets “at prices which were so much less than the prices at which it was selling * * * to defendant * * * that the defendant could not sell the products which it had purchased from plaintiff in competition with the goods which had been so ‘dumped,’ ” and, in a letter dated December 15, 1930, announced to the defendant that it would retire fhom the radio business and did so retire. By reason of the foregoing, plaintiff claimed $150,000 damages.
This counterclaim incorporates by reference a letter from the plaintiff to the defendant which begins by saying: “This is to confirm and set forth the terms of the agreement * * * between yourselves and our company.” It is, therefore, a final memorial of the agreement of the parties and all the allegations about a contemporaneous oral agreement must under the parol evidence rule be disregarded. When the letter says, “It is understood that it is your intention to manufacture ■* * * a reasonably complete line of radio sets * * * to be sold at list prices commencing at about * * * $125.00,” it sets forth no promissory obligation or contractual relation, but an intention and nothing more, and affords no basis for recovery in contract. But the counterclaim sets forth a representation of an intention to manufacture cheap radio sets made to induce the defendant to enter into the agreement, that it was false and known to be false, was made to deceive the defendant and relied on by the latter to his damage-. If it had been alleged that the plaintiff after making such a representation as to its intention had failed to manufacture the cheap radio sets, the cause of action would be complete. Adams v. Gillig, 199 N. Y. 314, 92 N. E. 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cas. 910; Ritzwoller v. Lurie, 225 N. Y. 464, 122 N. E. 634; Deyo v. Hudson, 225 N. Y. 602, 122 N. E. 635; Adams v. Clark, 239 N. Y. 403, 146 N. E. 642. The cause of action relied on is not that the plaintiff did not intend to do what it contracted to do when it induced the defendant to contract as in Continuous Zinc Furnace Co. v. American Smelting & Refining Co. (C. C. A.) 61 F.(2d) 958, for-it had never bound itself contractually to manufacture the-cheap radios. The tort here consists 'in a fraudulent representation of an intention to do something, though not contracted for, in order to induce the malting of the agreement.. There is, however, no allegation in the counterclaim (and the question arises wholly upon the pleading itself) that the plaintiff failed, to manufacture cheap radio sets, so the cause of action based on this item of the second counterclaim fails. There is no showing that the District Judge was requested to allow a repleader and no error is assigned because-of his failure to grant one.
The allegation that the plaintiff falsely represented that it would continue manufacturing and would not “dump” its products is-also unavailing. The representations are said to have been made after the contract was entered into, and not as an inducement to-the making of it. As we shall later show, the defendant was bound under the agreement to purchase the amount of its business requirements. Therefore, the on-Iy damage which could arise from these false representations would be that the defendant was thereby induced to purchase more goods than it was bound under the contract to take, and no such damage is alleged. The second counterclaim was properly dismissed.
Third Counterclaim.
The third counterclaim is based upon the allegation that the plaintiff, on December 15, 1930, announced to the defendant that it would retire from the radio business and would no longer manufacture radio sets; that it ceased operations on that date and thereby canceled the agreement and became liable to-purchase the furniture and fixtures and assume the lease and pay for the merchandise of plaintiff’s manufacture at 28 West Twenty-Third street as the agreement provided must be done if the plaintiff should give six months’written notice of cancellation after December 1, 1930. The counterclaim also sets forth that the plaintiff never gave the six months’’ notice called for by the agreement but, by announcing on December 15, 1930, that it. would no longer manufacture radio sets and' failing to manufacture the same, canceled the-contract on that date. It also alleges that the plaintiff failed to assume the lease and purchase the fixtures and pay for the products of plaintiff’s manufacture on hand, all to defendant’s damage in the sum of $102,340.
It is a fatal objection to this counterclaim that the announcement of cancellation of the agreement was given less than six. months before the date when the counterclaim was interposed so that the cause of action had not arisen when the counterclaim was asserted. Moreover, the cancellation provided for in the agreement was not a breach of contract by the plaintiff, and the breach of contract which occurred when the plaintiff ceased to manufacture and supply the business needs of the defendant was not the cancellation provided for in the agreement. Any damages arising out of a cancellation on notice would be entirely different from those arising out of a broach. The plaintiff had a right to choose which it would subject itself to and cannot be required to assume the lease and repay the plaintiff upon the theory that its announcement of retirement from business was the equivalent of notice of cancellation provided for in the contract. We think it clear that the third counterclaim cannot be sustained and was properly dismissed.
Fourth Counterclaim.
We have already said that the oral agreement between the parties merged in the letter, which is incorporated by reference in the fourth counterclaim. The question, therefore, arises, what is the proper interpretation and effect of the letter of the defendant on February 1,1929, which the plaintiff accepted and which constituted the agreement between the parties. The plaintiff contends that the letter simply set forth a course of proposed business dealings and that the only thing the parties agreed to do was to refrain from dealing with others for a definite period; that it did not contain any promise of the defendant to buy, or of the plaintiff to sell, any quantity of merchandise.
While the foregoing contention is not without some force, we think the letter by the defendant of February 1, 1929’, accepted by the plaintiff gave rise to an implied agreement that the plaintiff should sell the radio and other products described in the letter to the extent that .might be reasonably required to enable the defendant to carry on its business as distributor for the plaintiff, and that the defendant should purchase the same. If such was the contract, the plaintiff was not relieved from performing its obligations by going out of business. Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218.
Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920, was a decision by this court. Schnerb, who was the distributor, sought damages for breach by the defendant, who was the manufacturer, of its covenant .not to invade the territory that it had assigned to Schnerb. Schnerb asserted that the defendant had broken this covenant by selling tractors to the French government direct. The contract in that case consisted of a letter by the defendant to Schnerb which gave the latter “exclusive representation” in the sale of defendant’s tractors in certain territory, including France. The letter contained no promise to buy or sell. It might be argued, as here, that all that was left to the will of the parties. Nor did the letter set forth any definite number of tractors which it was proposed that Schnerb was to buy. It did provide, however, that a price “for the present” of a 60 horse power type of tractor should he $3,125 and that at all times the prices should be in keeping with those being charged other agents using a like amount of goods. In that ease we said in effect that there was an implied agreement by each party not to sell tractors in the other’s territory, that the defendant promised that the prices charged Schnerb should be in keeping with those charged other agents, and the defendant was under an implied obligation to fill Schnerb’s orders if the capacity of its plant permitted.
In Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90, a manufacturer agreed to sell and deliver shoes to a customer at prices to be agreed on from time to time, and the customer undertook to resell the shoes, as the manufacturer’s agent, under the agreement that the customer should have the exclusive sale of the shoes of the manufacturer. It was argued that the contract was invalid for lack of mutuality, but the Court of Appeals of the Third Circuit held it valid and decided that when the manufacturer refused to fill orders furnished by the customer there was a breach of contract.
In Mills-Morris Co. v. Champion Spark Plug Co. (C. C. A.) 7 F.(2d) 38, 39, the plaintiff, who was a dealer in automobile accessories, agreed to keep on hand at all times a stock of the different types of spark plugs manufactured by the defendant and “sufficient to supply the requirements” of plaintiff’s regular trade, and also agreed that all of plaintiff’s purchases during the contract term should be at certain specified prices. Plaintiff further agreed to canvass the territory for customers and promote the defendant’s trade in every reasonable w7ay. The defendant did not agree in express terms to sell spark plugs to the plaintiff, but the Court of Appeals of the Sixth Circuit held that such an obligation was to be “implied” from the “undertakings and the requirements that it exacted of plaintiff” and that a repudiation of the agreement by the defendant gave rise to a good eanse of action on the part of the plaintiff.’
In Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108, it was agreed betweeq the plaintiff and the defendant that the former should purchase, and the latter, should sell, all the pumpernickel which the plaintiff, who was a dealer in bread, required upon his route, and should pay therefor a price one cent less than the wholesale price and two cents less than the retail price. It was also agreed that the plaintiff was not to sell any other pumpernickel to its customers and that the defendant was to furnish plaintiff with such amount as his business required. The foregoing was held a valid contract not lacking in mutuality, although there was no express promise to purchase any particular amount of pumpernickel.
The decisions in Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88, 118 N. E. 214; Moran v. Standard Oil Co., 211 N. Y. 187, 105 N. E. 217; N. Y. C. Iron Works Co. v. U. S. Radiator Co., 174 N. Y. 331, 66 N. E. 967; Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218; Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404, 88 N. Y. S. 73; Phoenix Hermetic Co. v. Filtrine Mfg. Co., 164 App. Div. 424, 150 N. Y. S. 193; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. S. 496; Turner v. Goldsmith, L. R. 1 Q. B. (1891) 544, are to the same effect.
Plaintiff contends that the f oregoing eases are not in point because the defendant here was not an agent and there was no promise by plaintiff to supply the requirements of the defendant’s business. But the supposed difference seems tenuous. The letter on which the agreement between the parties is founded appointed the defendant plaintiff’s “distributor.” It provided that the appointment was to extend until February 1, 1933, but might be canceled by either party on or after December, 1930, upon six months’ written notice and that if the plaintiff gave such notice it should be required to assume the lease of the premises occupied by defendant which ran to February 1, 1933, and to purchase the furniture and fixtures therein and to take back and pay the cost of all merchandise of plaintiff’s manufacture which defendant might have on hand. It was also agreed that the plaintiff would not appoint any other distributor in its territory during the life of the contract and that, if desired, the defendant would only handle plaintiff’s products. It was provided that the prices to the defendant should be no greater than those made to ‘Other distributors, and that if prices were lowered after goods had been delivered to the defendant, certain rebates were to be allowed to it and its customers for all products unsold by it, or them, and purchased within ninety days. Provision was also made for discounts to defendant’s dealers, and defendant was required to send plaintiff reports of net billings, together with copies of invoices. It was agreed that plaintiff should pay one-half the cost of newspaper or magazine advertising incurred either by the defendant or its dealers in connection with the sale of plaintiff’s products. It was also agreed that the plaintiff should consult with defendant and give due consideration to its suggestions as to changes in designs and types of instruments and records which defendant might consider desirable and that the latter should offer suggestions based on its long experience which it wished to place at plaintiff’s disposal. We can see no distinction between a distributor’s contract of this kind and the so-called agency contracts in which it is apparently admitted that agreements to sell and purchase would be implied. Under the agreement of February 1, 1929, as extended, defendant was compelled to do no business in radio products within a specified territory except with plaintiff, and the contract plainly required co-operation. It would defeat its purposes if agreements to purchase and sell were not implied. While the word “requirements” was not used, it must be supplied to render what was plainly a contract founded on mutual promises intelligible and effective. The plaintiff, having appointed the defendant distributor and obtained from the latter a promise to deal exclusively in plaintiff’s products, would not fulfill its contract unless it to a reasonable extent filled defendant’s orders.
The decision in Schlegel Mfg. Co. v. Peter Cooper’s Glue Factory, 231 N. Y. 459, 132 N. E. 148, 150, is relied upon by plaintiff, but is clearly distinguishable. In that case the defendant, a manufacturer of glue, wrote a letter to the plaintiff saying it had entered the “contract for your requirements of 'Special B. V.’ glue for the year 1916, price to be 9i>1 per lb. terms 2% 20th to 30th of month following purchase. Deliveries to be made to you as per your orders during the year * * At the bottom of the letter, the plaintiff 'wrote: “Accepted.” But the plaintiff did not agree “to sell any of the defendant’s glue, to make any effort towards bringing about such sale, or not to sell other glues in competition with it.” As the court said: “The only obligation assumed by it was to pay nine cents a pound for such glue as it might order.” There was no appointment of an exclusive agent or distributor as in the ease before us. The buyer did not agree to handle only the seller’s products, but was a mere jobber engaged in no business requiring glue so that there was no ascertainable standard of “requirements.” Nassau Supply Co. v. Ice Service Co., 252 N. Y. 277, 169 N. E. 383.
In Smith v. Diem, 223 App. Div. 572 229 N. Y. S. 56, affirmed 249 N. Y. 590, 164 N. E. 595, the defendant promised to sell no cigars to any other dealer Ilian the plaintiff so long as the latter bought 10,000 per week. The plaintiff did not, as in our case, agree to buy of no other manufacturer. There was no more than a unilateral offer in a letter by the plaintiff, to which the defendant made no reply.
We think the contract set up in the fourth counterclaim is governed by the principles laid down in Schnerb v. Caterpillar Tractor Co. (C. C. A.) 43 F.(2d) 920; Abrams v. George E. Keith Co. (C. C. A.) 30 F.(2d) 90; Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108; Turner v. Goldsmith, 1 Q. B. (1891) 544; and other decisions we have referred to, and that the judgment dismissing this counterclaim must, therefore, be reversed with leave to interpose an answer thereto, if the plaintiff should be so advised.
Amended First Counterclaim in Second Amended Answer.
As already stated, Judge Coxe dismissed the first counterclaim as well as the three others and allowed the defendant to amend it, whereupon it alleged the making of the agreement of February 1, 1929, and the extension thereof to February 3,1933, and set forth that it was provided in such agreement that if the prices of the plaintiff’s products wore lowered at any time there should be refunded to the defendant the difference between the cost under the new prices and the cost thereof under the old prices on all products which had been billed to the defendant within the preceding ninety days and were on hand unsold at the time of such reduction. The amended counterclaim further alleged that on or about October 15, 1930, plaintiff, without notice to the defendant, reduced its prices on its products and the defendant thereupon became entitled to a refund; that on or about that date the defendant had on hand certain products purchased by it from plaintiff and billed within the preceding ninety days on which the plaintiff had reduced its prices; that after the 15th day of October, and while the agreement was still in force, the defendant purchased from the plaintiff certain additional products of a class upon which the plaintiff had reduced its prices on or about the 15th day of October. That by reason of the aforesaid reduction in prices by the plaintiff, the defendant became entitled to a refund of a specified amount, no part of which had been paid. Plaintiff filed a reply to this amended counterclaim in which it alleged that shortly prior to November 5,1930, defendant commenced to distribute a radio known as the Clarion radio in the territory specified in the agreement; that this was not an Edison radio and was not manufactured by plaintiff; that defendant’s distribution of the Clarion radios was in violation of the agreement that defendant should handle only Edison products and constituted a breach of a vital and dependent covenant of the agreement between the parties; that on or about November 5, plaintiff served upon defendant a notice in writing whereby and because of the defendant’s breach in distributing the Clarion radios the agreement was terminated and plaintiff’s obligations thereunder ceased and were discharged. In accordance with the foregoing pleadings the defendant demanded refunds in amounts specified and the plaintiff demanded judgment dismissing the counterclaim.
The plaintiff contends that the sales of goods after plaintiff gave notice on November 5 that the distribution of the Clarion radios constituted a vital breach of the agreement which was thereby terminated constituted a new transaction outside of the contract, to which the provisions relating to refunds did not apply. The referee found that as early as August 6, 1930, the plaintiff was notified that the defendant was selling Clarion radios, and yet went on shipping its products to the defendant and doing business with the lattei’. We agree with his conclusion that such conduct was a waiver by the plaintiff of its right to terminate the contract for this breach and that under such circumstances its only remedy was to sue for any damages that it could prove by reason of the breach. Termination of the contract for this partial breach could only be had after reasonable notice to perform. We also agree with the referee that the later sales cannot be treated as transactions separate from the contract.
We have already said in this opinion that the agreement between the parties set forth in the letter of February 1, 192-9, constituted a valid contract of purchase and sale. When the deliveries of radio products in December, 1930, were made, the agreement was still in existence and as a matter of law they were bound to become subject to its terms. The plaintiff appeals from the decision of the issues raised by its reply to the amended first counterclaim on the ground that its notice of rescission on November 5 was effectual to cancel the agreement and that even if'the contract was still in force the goods were sold under an independent arrangement that included no right to refunds because of price reduction. We differ with both contentions. Continuance by the plaintiff of sales under the contract, and acceptance of performance by the defendant, amounted to an election to continue the contract and not to terminate it because of the breach. In such a situation no new consideration was required to prevent cancellation and plaintiff’s letter of November 5, 1930, was ineffectual to terminate the agreement. Champion Spark Plug Co. v. Automobile Sundries Co. (C. C. A.) 273 F. 74; Rosenthal P. Co. v. Nat. Folding B. & P. Co., 226 N. Y. 313, 123 N. E. 766; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814; Tipton v. Feitner, 20 N. Y. 423; Panoutsos v. Raymond Hadley Corporation (1917) 2 K. B. 473; McNicholas v. Prudential Insurance Co., 191 Mass. 304, 77 N. E. 756; Williston on Contracts, §§ 682, 687.
Defendant quite properly replied to the letter of November 5, 1930, that it did not consider plaintiff’s letter a proper notice of cancellation of the agreement. As a matter of fact, the contract contained a clause, which we have already discussed, stating that it was plaintiff’s intention to put out a cheaper radio line. Defendant had constantly urged it to do this because cheaper sets were needed for the trade than those which the plaintiff was selling. The defendant never dealt in any radio of a price comparable to the plaintiff’s that did not originate with the latter. Under these circumstances, we think that the breach was partial. But whatever it was, the conduct of the plaintiff had precluded it from treating the contract as terminated until after giving the defendant a reasonable notice that it must cease selling the Clarion line and resume total performance.
We hold that the refunds were properly computed and the amount due .from the defendant was correctly reported by the referee. The amount of the judgment must, however, depend on what damages, if any, the defendant may be able to establish under itsjEourth counterclaim. The judgment is affirmed in so far as it' dismisses the first, second, and third counterclaim, and is reversed in so far as it dismisses the fourth counterclaim, with leave to the plaintiff to reply thereto within a time to be fixed by the District Court. The judgment is likewise reversed in so far as it adjudges that the plaintiff recover $16,585.67, interest and eosts, because the amount of the recovery by either party will depend on the result of the trial of the issues under the fourth counterclaim. When they are determined, judgment must be entered in accordance with the findings of fact heretofore made by the referee and the decision of the issues raised by the fourth counterclaim and the reply thereto. Parker Washington Co. v. Cramer (C. C. A.) 201 F. 878.
The ease is remanded, with directions to-proceed in accordance with the views expressed in this opinion.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_source
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Procio Rivero PILAPIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 270-69.
United States Court of Appeals, Tenth Circuit.
March 20, 1970.
Rehearing Denied April 27, 1970.
John A. Kintzele, Denver, Colo., for petitioner.
Leonard W. D. Campbell, Denver, Colo. (James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., with him on the brief) for respondent.
Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS District Judge.
Sitting by designation.
HICKEY, Circuit Judge.
This case arises out of a petition to review an order of The Board of Immigration Appeals as provided for by Section 106(a) of the Naturalization and Immigration Act of 1952 (hereinafter the Act), 8 U.S.C. § 1105a as amended (1961). The Board order dismissed an appeal from the decision of a Special Inquiry Officer in a deportation proceeding which found that “after admission as a nonimmigrant [student] under Section 101(a) (15) of said act [he] failed to comply with the conditions of the nonimmigrant’s status under which he was admitted,” that he was therefore de-portable pursuant to Section 241(a) (9) of the Act, and that he was not eligible for requested permission to remain permanently as an immigrant with a worldwide quota preference. The officer also denied Pilapil’s application for voluntary departure.
Pilapil conceded his deportability under Section 241 of the Act and does not here contest this aspect of the officer’s finding. Likewise, he does not argue that the Special Inquiry Officer and the Board of Immigration Appeals abused their discretion in denying him the right of voluntary departure from the country. Instead, Pilapil has consolidated the twelve points relied on in his petition for review to the following four issues:
1. Whether petitioner had a right to counsel in the deportation hearing and whether that right was violated ?
2. What evidence of, or notice of, the conditions allegedly- not complied with must be taken at the administrative hearing or made part of the record?
3. Whether the statutory subsection [8 U.S.C. § 1251(9)] is too vague and does it involve an unconstitutional delegation?
4. Does it violate due process to prohibit a lawfully admitted “nonim-migrant” student from working without first obtaining permission to do so from the Immigration and Naturalization Service?
None of these issues were specifically raised in the hearing which was conducted pursuant to the provisions contained in 8 U.S.C. § 1252(b) and consequently are not specifically reflected in the record upon which the order is based. 8 U.S.C. § 1105a(a) (4) limits us to consideration of the administrative record in ruling on the petition. Thus, we must decide initially whether or not under the limited review statute issues not presented in the administrative record to the executive officer to whom authority has been delegated is outside the record and not reviewable by us.
At the outset it is clear that Pilapil could get judicial review of these issues by writ of habeas corpus when taken into custody pursuant to the deportation order. 8 U.S.C. § 1105a(a) (9). Foti v. Immigration and Naturalization Service, 375 U.S. 217, 231, 84 S. Ct. 306, 11 L.Ed.2d 281 (1963). It is not clear, however, that the availability of habeas corpus takes consideration of these issues beyond our reach.
The jurisdictional reach of § 1105a has been considered on three occasions by the Supreme Court. Acknowledging the statutory language “[t]he procedure * * * shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * made against aliens within the United States * * * except that — ,” the court expanded the reach of the exclusive jurisdiction in the Court of Appeals to include a request made in the course of a section 242(b) deportation proceeding, 8 U.S.C. § 1252(b), for a suspension of deportation under section 244(a) (5), 8 U.S.C. § 1254(a) (5), (1&64). Foti, supra. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) decided that the Court of Appeals also has exclusive jurisdiction to review a denial of a motion to reopen a section 242(b) proceeding. In Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968) it was held that the exclusive jurisdiction of the Court of Appeals was limited to orders arising from the proceedings for deportation provided in section 242(b). We are limited by these to review of questions arising from the proceedings as reflected in the administrative record.
Thus, if Pilapil were protesting the factual determination that he is deportable or the refusal to grant him the privilege of voluntary departure, our jurisdiction would be clear. In that case, the petitioner, to have the decision overturned, would have to show that the decision is without rational basis and is arbitrary, capricious or an abuse of discretion. Foti, supra.
The tenor of the issues raised by Pilapil, however, is not that the deportation order is not called for by the facts given, but rather that to deport him under the circumstances here would be unconstitutional. Recognizing that these issues could be raised in a habeas corpus proceeding, we do not feel that this precludes the court from considering them.
As was stated by the Ninth Circuit in reviewing an exercise of discretion by an immigration official, “the function of this court is limited to insuring that this discretion is not abused, and that petitioner has been afforded a full and fair hearing that comports with due process.” Antolos v. Immigration and Naturalization Service, 402 F.2d 463, 464 (9th Cir. 1968). See also, Jarecha v. Immigration and Naturalization Service, 417 F.2d 220, 225 (5th Cir. 1969), Yiannopoulos v. Robinson, 247 F.2d 655, 656-657 (7th Cir. 1957).
The facts needed to treat the issues raised by Pilapil are set out in the administrative record. Nothing in the limited jurisdictional statute is explicit in directing that only issues raised at the hearing may be raised on a petition for review. While the issues raised do not question Pilapil’s deportability under the statute, if they are well taken, the order itself would be voided. See Ferrante v. Immigration and Naturalization Service, 399 F.2d 98, 103 (6th Cir. 1968) and cases cited. Because constitutional issues are concerned and because of the outcome we reach, we hold that we are not precluded from considering the issues raised by Pilapil.
The administrative record reflects that Pilapil appeared without counsel for a deportation hearing on January 28, 1969. He was advised he had a right to counsel at his own expense and exercised the right. The hearing was postponed for the purpose of permitting him to obtain a lawyer. Approximately 30 days thereafter, on February 25, 1969, petitioner appeared with Mr. Daniel H. Schoedinger, who identified himself as follows: “I am a law student at the University of Denver. I am here on behalf of the Legal Aid Society for Mr. Pilapil.”
Section 242(b) (2) of the Act provides “the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose; * * It is contended by petitioner that Schoedinger did not satisfy the requirements of a “counsel” because he was not authorized to act as an attorney in a deportation hearing.
2 Colo.Rev.Stat. § 12-1-19 (1963): “Students of any law school which has been continuously in existence for at least ten years prior to the passage of this section and which maintains a legal aid dispensary where poor persons receive legal advice and services, shall when representing said dispensary and its clients and then only be authorized to appear in court as if licensed to practice.”
Pilapil argues that the foregoing provision does not qualify the law student to act as counsel in Federal Immigration proceedings. The contention may be true because deportation proceedings are administrative rather than judicial. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082 (1939).
8 C.F.R. § 292.1(c) (1958) provides: “Accredited representatives. A person may be represented by an accredited representative of an organization described in section 1.1 (j) of this chapter.”
8 C.F.R. 1.1 (j) (1965) provides: “The term ‘representative’ means a person representing a religious, charitable, social-service, or similar organization established in the United States and recognized as such by the Board, or a person described in § 292.1(b), (d), or (h) of this chapter.” At the hearing now questioned the petitioner’s representative identified himself in the record as being there “on behalf of the Legal Aid Society.”
Legal Aid Society is “[a]n organization providing free help in legal guidance and service to persons who cannot afford a lawyer.” Random House Dictionary, p. 818 (Unabridged ed. 1966). Thus, Pilapil’s representative qualifies.
The thrust of present counsel’s complaint against “the law student” is that he permitted an admission of deportability. However, the Supreme Court in Foti, supra, 375 U.S. at 227, 84 S.Ct. at 313 footnote 13, recognized “[djeportability is conceded in about 80% of the cases.” It is therefore evident that the strategy of the petitioner's counsel in representing his client places him with the great majority of experienced representatives. The argument is without merit in view of the record made by the petitioner’s legal aid counsel, and in view of the fact that Pilapil himself when testifying conceded the elements of deportability.
The specifics of the order to show cause answer the second issue above set forth. In the order, Pilapil is identified as a native and citizen of the Philippines, not a citizen or national of the United States. Violation of section 241(a) (9) of the Immigration and Naturalization Act is charged, “in that after admission as a nonimmigrant under section 101(a) (15) of said act you failed to comply with the conditions of the nonimmigrant status under which you were admitted. You have been employed without permission as a busboy for the Cherry Creek Inn, Denver, Colorado, as of October 29, 1968, at $1.25 an hour.” After the foregoing had been read to petitioner in the presence of his representative, he replied, “I think I understand. Q. You think so? A. Yes.” This, together with the documentary evidence contained in the record, is convincing that evidence and actual notice of the conditions are a part of the record under review. Therefore the second contention is without merit.
It is next claimed that the section under which the charge in the order to show cause is alleged is vague and involves an unconstitutional delegation.
This claim is premised on the presumption that the statute as it relates to deportation is penal and therefore the criminal standards should be applied. A deportation proceeding is not a criminal prosecution. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S. Ct. 512, 96 L.Ed. 586 (1952). The assertion was reiterated and confirmed in Woodly v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).
Fed.R.Civ.P. 12(e) provides a remedy for vague or uncertain pleading. If the order to show cause presented a question of the condition that had been violated, a more definite or precise statement could have been obtained. We can conceive of no more definite and precise allegation in the order than that set forth above that petitioner had been employed without obtaining permission, a condition to continued status as a nonimmi-grant student.
The delegation of authority is also questioned. 8 U.S.C. § 1184(a) provides in part: “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations proscribe, including * * The regulations, particularly 8 C.F.R. § 214.2(f) (3) which deals with special requirements for the admission of students, spell out the conditions that a student alien must maintain to continue in the nonimmigrant alien status granted at the time of admission. The record is replete with requests to allow employment made by petitioner and denied by the Director. These are convincing that petitioner was aware of these conditions and the loss of status effected by the breach of them. “The rule as to a definite standard of action is not so strict in cases of the delegation of legislative power to executive boards and officers.” Mahler v. Eby, 264 U.S. 32, 41, 44 S.Ct. 283, 287, 68 L.Ed. 549 (1924).
“The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, ‘with such opportunity for judicial review of their action as congress may see fit to authorize or permit.’ ” Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 532, 96 L.Ed. 547. Cf. Jarecha v. Immigration and Naturalization Service, 417 F.2d 220 (5th Cir. 1969).
The delegation is not constitutionally proscribed.
The final contention urged is that alien petitioner had a constitutional right to work without authorization. The authorities cited by petitioner concern immigrants lawfully residing in the United States. These cases are the key to the contention. Petitioner admits he is a nonimmigrant with alien status for the sole purpose of being a student in the United States admitted subject to specific conditions.
Before this limited status was granted to respondent, he had no rights under the Constitution, laws or government of the United States. As a citizen and national of another country his rights were established by the alien law peculiar to his native domicile. The limited status given him as an alien student had some specific conditions attached. One was that he had sufficient money to insure that he would not become a public charge nor be required to enter into the labor market of this country. He agreed to these conditions to obtain the privilege accorded the limited status. He was not coerced to forego rights he otherwise would have had. He acquired only the limited status established by the conditions. 8 U.S.C. § 1251(a) provides :
“Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * (9) was admitted as a nonim-migrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
In addition, 8 C.F.R. § 214.1(a) provides, in relation to maintenance of non-immigrant status, that:
“Every nonimmigrant alien applicant for admission or extension of stay in the United States shall * * * agree that he will abide by all the terms and conditions of his admission or extension, and that he will depart at the expiration of the period of his admission or extension or on abandonment of his authorized nonimmigrant status. * * * ”
Therefore no rights under the Constitution of the United States relative to equal opportunity of employment are involved. Wei v. Robinson, 246 F.2d 739 (7th Cir.), cert. denied, 355 U.S. 879, 78 S.Ct. 144, 2 L.Ed.2d 109 (1957).
Affirmed.
. 8 U.S.C. § 1105a provides: “The procedure described by, and all the provisions of sections 1031-1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, except that * *
. 8 U.S.C. § 1105a(a) (4) provides: “except as provided in clause (B) of paragraph (5) of this subsection, the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive
. 8 U.S.C. § 1105a(a) (9) provides: “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.”
. 8 U.S.C. § 1251(9) provides: “* * * was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BRUNSWICK CORP. v. PUEBLO BOWL-O-MAT, INC., et al.
No. 75-904.
Argued November 3, 1976
Decided January 25, 1977
Bernard G. Segal argued the cause for petitioner. With him on the briefs were Ira P. Tiger, Joseph A. Tate, Miles G. Seeley, and Thomas B. McNeill.
Malcolm A. Hoffmann argued the cause for respondents. With him on the brief was Edward A. Woolley.
John L. Endicott and John J; Swenson filed a brief for Purex Corp. as amicus curiae.
Mr. Justice Marshall
delivered the opinion of the Court.
This case raises important questions concerning the interrelationship of the antimerger and private damages action provisions of the Clayton Antitrust Act.
I
Petitioner is one of the two largest manufacturers of bowling equipment in the United States. Respondents are three of the 10 bowling centers owned by Treadway Companies, Inc. Since 1965, petitioner has acquired and operated a large number of bowling centers, including six in the markets in which respondents operate. Respondents instituted this action contending that these acquisitions violated various provisions of the antitrust laws.
In the late 1950’s, the bowling industry expanded rapidly, and petitioner’s sales of lanes, automatic pinsetters, and ancillary equipment rose accordingly. Since this equipment requires a major capital expenditure — $12,600 for each lane and pinsetter, App. A1576 — most of petitioner’s sales were for secured credit.
In the early 1960’s, the bowling industry went into a sharp decline. Petitioner’s sales quickly dropped to preboom levels. Moreover, petitioner experienced great difficulty in collecting money owed it; by the end of 1964 over $100,000,000, or more than 25%, of petitioner’s accounts were more than 90 days delinquent. Id., at A1884. Repossessions rose dramatically, but attempts to sell or lease the repossessed equipment met with only limited success. Because petitioner had borrowed close to $250,000,000 to finance its credit sales, id., at A1900, it was, as the Court of Appeals concluded, “in serious financial difficulty.” NBO Industries Treadway Cos., Inc. v. Brunswick Corp., 523 F. 2d 262, 267 (CA3 1975).
To meet this difficulty, petitioner began acquiring and operating defaulting bowling centers when their equipment could not be resold and a positive cash flow could be expected from operating the centers. During the seven years preceding the trial in this case, petitioner acquired 222 centers, 54 of which it either disposed of or closed. Ibid. These acquisitions made petitioner by far the largest operator of bowling centers, with over five times as many centers as its next largest competitor. Ibid. Petitioner’s net worth in 1965 was more than eight times greater, and its gross revenue more than seven times greater, than the total for the 11 next largest bowling chains. App. A1675. Nevertheless, petitioner controlled only 2% of the bowling centers in the United States. Id., at A1096.
At issue here are acquisitions by petitioner in the three markets in which respondents are located: Pueblo, Colo., Poughkeepsie, N. Y., and Paramus, N. J. In 1965, petitioner acquired one defaulting center in Pueblo, one in Poughkeepsie, and two in the Paramus area. In 1969, petitioner acquired a third defaulting center in the Paramus market, and in 1970 petitioner acquired a 'fourth. Petitioner closed its Poughkeepsie center in 1969 after three years of unsuccessful operation; the Paramus center acquired in 1970 also proved unsuccessful, and in March 1973 petitioner gave notice that it would cease operating the center when its lease expired. The other four centers were operational at the time of trial.
Respondents initiated this action in June 1966, alleging, inter alia, that these acquisitions might substantially lessen competition or tend to create a monopoly in violation of § 7 of the Clayton Act, 15 U. S. C. § 18. Respondents sought damages, pursuant to § 4 of the Act, 15 U. S. C. § 15, for three times “the reasonably expectable profits to be made [by respondents] from the operation of their bowling centers.” App. A24. Respondents also sought a divestiture order, an injunction against future acquisitions, and such “other further and different relief” as might be appropriate under § 16 of the Act, 15 U. S. C. § 26. App. A27.
Trial was held in the spring of 1973, following an initial mistrial due to a hung jury. To establish a § 7 violation, respondents sought to prove that because of its size, petitioner had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that had petitioner allowed the defaulting centers to close, respondents’ profits would have increased. At respondents’ request, the jury was instructed in accord with respondents’ theory as to the nature of the violation and the basis for damages. The jury returned a verdict in favor of respondents in the amount of $2,358,030, which represented the minimum estimate by respondents of the additional income they would have realized had the acquired centers been closed. Id., at A1737. As required by law, the District Court trebled the damages. It also awarded respondents costs and attorneys’ fees totaling $446,977.32, and, sitting as a court of equity, it ordered petitioner to divest itself of the centers involved here, Treadway Cos. v. Brunswick Corp., 389 F. Supp. 996 (NJ 1974). Petitioner appealed.
The Court of Appeals, while endorsing the legal theories upon which respondents’ claim was based, reversed the judgment and remanded the case for further proceedings. NBO Industries Treadway Cos. v. Brunswick Corp., supra. The court found that a properly instructed jury could have concluded that petitioner was a “giant” whose entry into a “market of pygmies” might lessen horizontal retail competition, because such a “giant”
“has greater ease of entry into the market, can accomplish cost-savings by investing in new equipment, can resort to low or below cost sales to sustain itself against competition for a longer period, and can obtain more favorable credit terms.” 523 F. 2d, at 268.
The court also found that there was sufficient evidence to permit a jury to conclude that but for petitioner’s actions, the acquired centers would have gone out of business. Id., at 273, 275-277. And the court held that if a jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. After reviewing the instructions on these issues, however, the court decided that the jury had not been properly charged and that therefore a new trial was required. Id., at 275-277. It also decided that since “an essential predicate” for the District Court’s grant of equitable relief was the jury verdict on the § 7 claim, the equitable decree should be vacated as well. Id., at 277-278. And it concluded that in any event equitable relief “should be restricted to preventing those practices by which a deep pocket market entrant harms competition .... [D]ivestiture was simply inappropriate.” Id., at 279.
Both sides petitioned this Court for writs of certiorari. Brunswick’s petition challenged the theory the Court of Appeals had approved for awarding damages; the plaintiffs’ petition challenged the Court of Appeals’ conclusions with respect to the jury instructions and the appropriateness of a divestiture order. We granted Brunswick’s petition. 424 U. S. 908 (1976).
II
The issue for decision is a narrow one. Petitioner does not presently contest the Court of Appeals’ conclusion that a properly instructed jury could have found the acquisitions unlawful. Nor does petitioner challenge the Court of Appeals’ determination that the evidence would support a finding that had petitioner not acquired these centers, they would have gone out of business and respondents’ income would have increased. Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares.
To answer that question it is necessary to examine the anti-merger and treble-damages provisions of the Clayton Act. Section 7 of the Act proscribes mergers whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” (Emphasis added.) It is, as we have observed many times, a prophylactic measure, intended “primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil . . . .” United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 597 (1957). See also Brown Shoe Co. v. United States, 370 U. S. 294, 317-318 (1962); United States v. Philadelphia Nat. Bank, 374 U. S. 321, 362-363 (1963); United States v. Penn-Olin Chemical Co., 378 U. S. 158, 170-171 (1964); United States v. Von’s Grocery Co., 384 U. S. 270, 277 (1966); FTC v. Procter & Gamble Co., 386 U. S. 568, 577-578 (1967); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 201 (1974).
Section 4, in contrast, is in essence a remedial provision. It provides treble damages to “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . .” Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. Perma Life Mufflers v. International Parts Corp., 392 U. S. 134, 139 (1968); Fortner Enterprises v. United States Steel Corp., 394 U. S. 495, 502 (1969); Zenith Radio Corp. v. Hazeltine Research, 395 U. S. 100, 130 (1969); Hawaii v. Standard Oil Co., 405 U. S. 251, 262 (1972). It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a multiple of the injury actually proved, is designed primarily as a remedy.
Intermeshing a statutory prohibition against acts that have a potential to cause certain harms with a damages action intended to remedy those harms is not without difficulty. Plainly, to recover damages respondents must prove more than that petitioner violated § 7, since such proof establishes only that injury may result. Respondents contend that the only additional element they need demonstrate is that they are in a worse position than they would have been had petitioner not committed those acts. The Court of Appeals agreed, holding compensable any loss “causally linked” to “the mere presence of the violator in the market.” 523 F. 2d, at 272-273. Because this holding divorces antitrust recovery from the purposes of the antitrust laws without a clear statutory command to do so, we cannot agree with it.
Every merger of two existing entities into one, whether lawful or unlawful, has the potential for producing economic readjustments that adversely affect some persons. But Congress has not condemned .mergers _on UAatme,count,i t has condemned them only when they may produce anticompetitive effects. Yet under the Court of Appeals’ holding, once a merger is found to violate § 7, all dislocations caused by the merger are actionable, regardless of whether those dislocations have anything to do with the reason the merger was condemned. This holding would make § 4 recovery entirely fortuitous, and would authorize damages for losses which are of no concern to the antitrust laws.
Both of these consequences are well illustrated by the facts of this case. If the acquisitions here were unlawful, it is because they brought a “deep pocket” parent into a market of “pygmies.” Yet respondents’ injury — the loss of income that would have accrued had the acquired centers gone bankrupt — bears no relationship to the size of either the acquiring company or its competitors. Respondents would have suffered the identical “loss” — but no compensable injury — had the acquired centers instead obtained refinancing or been purchased by “shallow pocket” parents, as the Court of Appeals itself acknowledged, 523 F. 2d, at 279. Thus, respondents’ injury was not of “the type that the statute was intended to forestall,” Wyandotte Co. v. United States, 389 U. S. 191, 202 (1967).
But the antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for “the protection of competition, not competitors,” Brown Shoe Co. v. United States, 370 U. S., at 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here.
Of course, Congress is free, if it desires, to mandate damages awards for all dislocations caused by unlawful mergers despite the peculiar consequences of so doing. But because of these consequences, “we should insist upon a clear expression of a congressional purpose,” Hawaii v. Standard Oil Co., 405 U. S., at 264, before attributing such an intent to Congress. We can find no such expression in either the language or the legislative history of § 4. To the contrary, it is far from clear that the loss of windfall profits that would have accrued had the acquired centers failed even constitutes “injury” within the meaning of § 4. And it is quite clear that if respondents were injured, it was not “by reason of anything forbidden in the antitrust laws”: while respondents’ loss occurred “by reason of” the unlawful acquisitions, it did not occur “by reason of” that which made the acquisitions unlawful.
We therefore hold that for plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be “the type of loss that the claimed violations . . . would be likely to cause.” Zenith Radio Corp. v. Hazeltine Research, 395 U. S., at 125.
Ill
We come, then, to the question of appropriate disposition of this case. At the very least, petitioner is entitled to a new trial, not only because of the instructional errors noted by the Court of Appeals that are not at issue here, see n. 6, supra, but also because the District Court’s instruction as to the basis for damages was inconsistent with our holding as outlined above., Our review of the record, however, persuades us that a new trial on the damages claim is unwarranted. Respondents based their case solely on their novel damages theory which we have rejected. While they produced some conclusory testimony suggesting that in operating the acquired centers petitioner had abused its deep pocket by engaging in anticompetitive conduct, they made no attempt to prove that they had lost any income as a result of such predation. Rather, their entire proof of damages was based on their claim to profits that would have been earned had the acquired centers closed. Since respondents did not prove any cognizable damages and have not offered any justification for allowing respondents, after two trials and over 10 years of litigation, yet a third opportunity to do so, it follows that, petitioner is entitled, in accord with its motion made pursuant to Rule 50 (b), to judgment on the damages claim notwithstanding the verdict. Neely v. Eby Constr. Co., 386 U. S. 317, 326-330 (1967); United States v. Generes, 405 U.S. 93, 106-107 (1972).
Respondents’ complaint also prayed for equitable relief, and the Court of Appeals held that if respondents established a § 7 violation, they might be entitled to an injunction against “those practices by which a deep pocket market entrant harms competition.” 523 F. 2d, at 279. Because petitioner has not contested this holding, respondents remain free, on remand, to seek such a decree.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Sales of automatic pinsetters, for example, went from 1,890 in 1956 to 16,288 in 1961. App. A1866.
Repossessions of pinsetters increased from 300 in 1961 to 5,996 in 1965. Ibid. In 1963, petitioner resold over two-thirds of the pinsetters repossessed; more typically, only one-third were resold, and in 1965, less than one-quarter were resold. Id., at A1879.
The complaint contained two additional counts. Count one alleged that petitioner had violated § 1 of the Sherman Act, 15 U. S. C. § 1, by-fixing resale prices for bowling supplies sold by petitioner to respondents. This count was abandoned prior to trial. Count two alleged that by virtue of the acquisitions and other acts, petitioner was guilty of monopolization or an attempt to monopolize in violation of § 2 of the Sherman Act, 15 U. S. C. § 2. The jury found for petitioner on this count, and respondents did not appeal.
The complaint also named as plaintiffs National Bowl-O-Mat, the predecessor to Treadway Companies, and the seven other bowling center subsidiaries of Treadway. These plaintiffs were unsuccessful on all counts, however, and they did not appeal the judgments entered against them.
Judgment ultimately was entered for $6,575,040, which is $499,050 less than three times the jury’s damages award, after respondent Pueblo Bowl-O-Mat consented to a remittitur which the District Court proposed as an alternative to a retrial on damages. Treadway Cos. v. Brunswick Corp., 364 F. Supp. 316, 324-326 (NJ 1973). The remittitur was deemed necessary because the jury apparently awarded damages to that respondent in accord with its minimum claim dating back to 1963, when the alleged § 2 violation began, rather than back to 1965, when the alleged § 7 violation began. The District Court thought that the jury might have been confused by the instruction to use the same" methods for calculating damages under the two sections. Ibid.
Petitioner’s appeal and respondents’ cross-appeal with respect to the amount of the attorneys’ fee award initially were dismissed by the Court of Appeals for want of jurisdiction because the District Court had neither disposed of respondents’ equitable claim nor certified the judgment entered on the legal claims pursuant to Fed. Rule Civ. Proc. 54 (b). Treadway Cos. v. Brunswick Corp., 500 F. 2d 1400 (CA3 1974) (order reported) ; App. A1563-A1566 {per curiam opinion reprinted). The District Court then certified the previously entered judgment, and the parties reappealed. While the appeals were pending, the District Court granted equitable relief, and the appeal from that judgment was consolidated with the pending appeals.
With respect to the instruction on the issue of liability, the court concluded that since petitioner’s acquisitions “did not increase concentration,” the District Court had erred by focusing on the size of the market shares acquired by petitioner rather than on “indicators of qualitative substantiality” such as the “relative financial strength of Brunswick, Treadway, and other competitors,” or “any retail market advantage” enjoyed by petitioner because of its status as financier and manufacturer. NBO Industries Treadway Cos. v. Brunswick Corp., 523 F. 2d, at 274-275 (CA3 1975). With respect to the instruction on damages, the Court of Appeals concluded that the District Court had failed to direct the jury to decide whether petitioner’s actions were responsible for keeping the acquired centers in business before considering how much additional income respondents would have earned if the acquired centers had been closed. Id., at 276-277.
The Court of Appeals also held, id., at 275, that in instructing the jury on the statutory requirement that the acquired company be “engaged ... in commerce,” the District Court had not anticipated this Court’s decision in United States v. American Bldg. Maint. Industries, 422 U. S. 271 (1975), which read the “in commerce” requirement more restrictively than had the leading decision of the Third Circuit, Transamerica Corp. v. Board of Governors, 206 F. 2d 163, cert. denied, 346 U. S. 901 (1953). Indeed, the court indicated that there might not be sufficient evidence in the record to satisfy the “in commerce” test. 523 F. 2d, at 271. The court concluded, however, that given the change in the law, it would be “unjust” to find the evidence insufficient and thereby deny plaintiffs an opportunity to meet the new test on retrial.
Both petitions also questioned the Court of Appeals’ decision to require relitigation of the “in commerce” issue, see n. 6, supra. Brunswick maintained it was entitled to a directed verdict on this issue; plaintiffs argued that they had satisfied the new test and that therefore no new trial was required.
The grant of certiorari excluded the question Brunswick sought to present concerning the suificiency of the evidence that the acquired companies were engaged “in commerce,” see nn. 6, 7, supra.
No action has been taken with respect to respondents’ petition.
Petitioner raises this issue directly through the first question presented, and indirectly through the second, which asks:
“Does not the ‘failing company’ principle require dismissal of a treble-damage action based on alleged violations of Section 7 of the Clayton Act where the plaintiffs’ entire damage theory is based on the premise that the ‘acquired’ businesses would have failed and disappeared from the market had the defendant not kept them alive by making the challenged ‘acquisitions?’ ” Pet. for Cert. 3.
In light of our holding, we have no occasion to consider the applicability of the failing-company defense to the conglomerate-like acquisitions involved here.
Treble-damages antitrust actions were first authorized by § 7 of the Sherman Act, 26 Stat. 210 (1890). The discussions of this section on the floor of the Senate indicate that it was conceived of primarily as a remedy for "[t]he people of the United States as individuals,” especially consumers. 21 Cong. Rec. 1767-1768 (1890) (remarks of Sen. George); see id., at 2612 (Sens. Teller and Reagan), 2615 (Sen. Coke), 3146-3149. Treble damages were provided in part for punitive purposes, id., at 3147 (Sen. George), but also to make the remedy meaningful by counterbalancing “the difficulty of maintaining a private suit against a combination such as is described” in the Act. Id., at 2456 (Sen. Sherman).
When Congress enacted the Clayton Act in 1914, it “extend[ed] the remedy under section 7 of the Sherman Act” to persons injured by virtue of any antitrust violation. H. R. Rep. No. 627, 63d Cong., 2d Sess., 14 (1914). The initial House debates concerning provisions related to private damages actions reveal that these actions were conceived primarily as “open[ing] the door of justice to every man, whenever he may be injured by those who violate the antitrust laws, and giv[ing] the injured party ample damages for the wrong suffered.” 51 Cong. Rec. 9073 (1914) (remarks of Rep. Webb); see, e. g., id., at 9079 (Rep. Volstead), 9270 (Rep. Carlin), 9414-9417, 9466-9467, 9487-9495. The House debates following the conference committee report, however, indicate that the sponsors of the bill also saw treble-damages suits as an important means of enforcing the law. Id., at 16274H6275 (Rep. Webb), 16317-16319 (Rep. Floyd). In the Senate there was virtually no discussion of the enforcement value of private actions, even though the bill was attacked as lacking meaningful sanctions, e. g., id., at 15818-15821 (Sen. Reed), 16042-16046 (Sen. Norris).
See Areeda, Antitrust Violations Without Damage Recoveries, 89 Harv. L. Rev. 1127, 1130-1136 (1976); Symposium, Private Enforcement of the Antimerger Laws, 31 Record of N. Y. C. B. A., 239, 260-261 (1976).
Conversely, had petitioner acquired thriving centers — acquisitions at least as violative of § 7 as the instant acquisitions — respondents would not have lost any income that they otherwise would have received.
For instances in which plaintiffs unsuccessfully sought damages for injuries unrelated to the reason the merger was prohibited, see Reibert v. Atlantic Richfield Co., 471 F. 2d 727 (CA10), cert. denied, 411 U. S. 938 (1973); Peterson v. Borden Co., 50 F. 2d 644 (CA7 1931); Kirihara v. Bendix Corp., 306 F. Supp. 72 (Haw. 1969); Goldsmith v. St. Louis-San Francisco R. Co., 201 F. Supp. 867 (WDNC 1962).
See generally GAF Corp. v. Circle Floor Co., 463 F. 2d 752 (CA2 1972), cert. dismissed, 413 U. S. 901 (1973); Comment, Section 7 of the Clayton Act: The Private Plaintiff’s Remedies, 7 B. C. Ind. & Comm. L. Rev. 333 (1966); Comment, Treble Damage Actions for Violations of Section 7 of the Clayton Act, 38 U. Chi. L. Rev. 404 (1971).
This does not necessarily mean, as the Court of Appeals feared, 523 F. 2d, at 272, that § 4 plaintiffs must prove an actual lessening of competition in order to recover. The short-term effect of certain anticompetitive behavior — predatory below-cost pricing, for example — may be to stimulate price competition. But competitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened. Of course, the case for relief will be strongest where competition has been diminished. See, e. g., Calnetics Corp. v. Volkswagen of America, Inc., 532 F. 2d 674 (CA9 1976); Metric Hosiery Co. v. Spartans Industries, Inc., 50 F. R. D. 50 (SDNY 1970); Klingsberg, Bull’s Eyes and Carom Shots: Complications and Conflicts on Standing to Sue and Causation Under Section 4 of the Clayton Act, 16 Antitrust Bull. 351, 364 (1971).
Respondents’ testimony concerned price reductions at three centers, App. A170, A420, A431; unjustified capital expenses at three centers, id., at A503-A506, A829-A830; and extravagant “give-aways,” id., at A169-A170, A222-A223, A413-A414, A569. This testimony is rather unimpressive when viewed against both petitioner’s contemporaneous business records which reveal that it did not lower prices when it took over the centers, Defendant’s Exhibits D-32, D-33, D-36, D-38, and respondents’ own exhibits, which demonstrate that petitioner made a profit at two centers, App. A1700, generated a positive cash flow at three others, id., at A1717, A1720, and closed the two centers that were unsuccessful, id., at A1725, A1733.
One of respondents’ witnesses did testify that he knew of one bowling league in Pueblo that had shifted from a respondent to petitioner after petitioner installed faster automatic pinsetters. Id., at 508. Assuming, arguendo, that such installations were not cost justified and constituted a form of predation, respondents still made no attempt to quantify the loss.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Appellant, v. Dr. J. W. ROBINSON et al., Appellees.
No. 14723.
United States Court of Appeals Eighth Circuit.
Dec. 10, 1952.
P. W. Lanier, U. S. Atty., and Harry Lashkowitz, Asst. U. S. Atty., Fargo, N. D., for appellant.
Milton K. Higgins, W. C. Lynch, Bismarck, N. D. and J. F. X. Conmy, Fargo, N. D., for appellees.
PER CURIAM.
Appeal from District Court dismissed, on dismissal of appeal filed by appellant. 106 F.Supp. 212.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_partywinning
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the 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. MUNOZ-FLORES
No. 88-1932.
Argued February 20, 1990
Decided May 21, 1990
Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which O’Con-nor, J., joined, post, p. 401. Scalia, J., filed an opinion concurring in the judgment, post, p. 408.
Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Clifford M. Sloan.
Judy Clarke argued the cause for respondent. With her on the brief was Mario G. Conte.
Justice Marshall
delivered the opinion of the Court.
This case raises the question whether 18 U. S. C. § 3013, which requires courts to impose a monetary “special assessment” on any person convicted of a federal misdemeanor, was passed in violation of the Origination Clause of the Constitution. That Clause mandates that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” U. S. Const., Art. I, § 7, cl. 1. We conclude initially that this case does not present a political question and therefore reject the Government’s argument that the case is not justiciable. On the merits, we hold that the special assessment statute does not violate the Origination Clause because it is not a “Bil[l] for raising Revenue.”
I
In June 1985, German Munoz-Flores was charged with aiding the illegal entry of aliens into the United States. He subsequently pleaded guilty to two misdemeanor counts of aiding and abetting aliens to elude examination and inspection by immigration officers. The Magistrate sentenced respondent to probation and ordered him to pay a special assessment of $25 on each count under the then-applicable version of 18 U. S. C. §3013 (1982 ed., Supp. V). Pet. for Cert. 27a-28a.
Respondent moved to correct his sentence, asserting that the special assessments were unconstitutional because Congress had passed § 3013 in violation of the Origination Clause. The Magistrate denied the motion, and the District Court affirmed. Id., at 26a. On appeal, the Ninth Circuit vacated the portion of the District Court’s sentencing order that imposed the special assessments. 863 F. 2d 654 (1988). The court held that respondent’s claim did not raise a nonjusticiable political question. Id., at 656-657. On the merits, the court ruled that § 3013 was a “Bil[l] for raising Revenue,” id., at 657-660, and that it had originated in the Senate because that Chamber was the first to pass an assessment provision, id., at 660-661. The court therefore concluded that §3013 had been passed in violation of the Origination Clause. Id., at 661.
The United States petitioned for a writ of certiorari, arguing that § 3013 did not violate the Origination Clause. The Government noted that the Ninth Circuit had rejected its argument that the case raised a political question, Pet. for Cert. 5, n. 5, but did not ask this Court to review that ruling. We granted certiorari and directed the parties to brief the political question issue. 493 U. S. 808 (1989).
II
A
In Baker v. Carr, 369 U. S. 186, 217 (1962), this Court identified the features that characterize a case raising a nonjusticiable political question:
“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Accord, INS v. Chadha, 462 U. S. 919, 941 (1983) (quoting Baker, supra, at 217).
The United States contends that “[t]he most persuasive factor suggesting nonjusticiability” is the concern that courts not express a “lack of . . . respect” for the House of Representatives. Brief for United States 10. In the Government’s view, the House’s passage of a bill conclusively establishes that the House has determined either that the bill is not a revenue bill or that it originated in the House. Hence, the Government argues, a court’s invalidation of a law on Origination Clause grounds would evince a lack of respect for the House’s determination. The Government may be right that a judicial finding that Congress has passed an unconstitutional law might in some sense be said to entail a “lack of respect” for Congress’ judgment. But disrespect, in the sense the Government uses the term, cannot be sufficient to create a political question. If it were, every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible. Congress often explicitly considers whether bills violate constitutional provisions. See, e. g., 135 Cong. Rec. 23121-23122 (1989) (remarks of Sen. Biden) (expressing the view that the Flag Protection Act of 1989, 103 Stat. 777, does not violate the First Amendment); 133 Cong. Rec. 30498-30499 (1987) (remarks of Sen. Hatch) (arguing that the independent counsel law, 28 U. S. C. § 591 et seq., was unconstitutional). Because Congress is bound by the Constitution, its enactment of any law is predicated at least implicitly on a judgment that the law is constitutional. Indeed, one could argue that Congress explicitly determined that this bill originated in the House because it sent the bill to the President with an “H. J. Res.” designation. See post, at 409 (Scalia, J., concurring in judgment). Yet such congressional consideration of constitutional questions does not foreclose subsequent judicial scrutiny of the law’s constitutionality. On the contrary, this Court has the duty to review the constitutionality of congressional enactments. As we have said in rejecting a claim identical to the one the Government, makes here: “Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.” Powell v. McCormack, 395 U. S. 486, 549 (1969).
The United States seeks to differentiate an Origination Clause claim from other constitutional challenges in two ways. The Government first argues that the House has the power to protect its institutional interests by refusing to pass a bill if it believes that the Origination Clause has been violated. Second, the Government maintains that the courts should not review Origination Clause challenges because compliance with that provision does not significantly affect individual rights. Of course, neither the House’s power to protect itself nor the asserted lack of a connection between the constitutional claim and individual rights is a factor that Baker identifies as characteristic of cases raising political questions. Rather, the Government attempts to use its arguments to establish that judicial resolution of Origination Clause challenges would entail a substantial lack of respect for the House, a factor that Baker does identify as relevant to the political question determination. Neither of the Government’s arguments persuades us.
Although the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve this Court of its responsibility to consider constitutional challenges to congressional enactments. See supra, at 391. Nor do the House’s incentives to safeguard its origination prerogative obviate the need for judicial review. As an initial matter, we are unwilling to presume that the House has a greater incentive to safeguard its origination power than it does to refuse to pass a bill that it believes is unconstitutional for other reasons. Such a presumption would demonstrate a profound lack of respect for a coordinate branch of Government’s pledge to uphold the entire Constitution, not just those provisions that protect its institutional prerogatives.
Even if we were to assume that the House does have more powerful incentives to refuse to pass legislation that violates the Origination Clause, that assumption would not justify the Government’s conclusion that the Judiciary has no role to play in Origination Clause challenges. In many cases involving claimed separation-of-powers violations, the branch whose power has allegedly been appropriated has both the incentive to protect its prerogatives and institututional mechanisms to help it do so. Nevertheless, the Court adjudicates those separation-of-powers claims, often without suggesting that they might raise political questions. See, e. g., Mistretta v. United States, 488 U. S. 361, 371-379 (1989) (holding that Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., and 28 U. S. C. §991 et seq., did not result in Executive’s wielding legislative powers, despite either House’s power to block Act’s passage); Morrison v. Olson, 487 U. S. 654, 685-696 (1988) (holding that independent counsel provision of Ethics in Government Act of 1978, 28 U. S. C. § 591 et seq., is not a congressional or judicial usurpation of executive functions, despite President’s veto power); INS v. Chadha, 462 U. S. 919 (1983) (explicitly finding that separation-of-powers challenge to legislative veto presented no political question). In short, the fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.
The Government’s second suggestion — that judicial intervention in this case is unwarranted because the case does not involve individual rights —reduces to the claim that a person suing in his individual capacity has no direct interest in our constitutional system of separation of powers, and thus has no corresponding right to demand that the Judiciary ensure the integrity of that system. This argument is simply irrelevant to the political question doctrine. That doctrine is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government; the identity of the litigant is immaterial to the presence of these concerns in a particular case. And we are unable to discern how, from the perspective of interbranch relations, the asserted lack of connection between Origination Clause claims and individual rights means that adjudication of such claims would necessarily entail less respect for the House than would judicial consideration of challenges based on constitutional provisions more obviously tied to civil liberties.
Furthermore, and more fundamentally, the Government’s claim that compliance with the Origination Clause is irrelevant to ensuring individual rights is in error. This Court has repeatedly emphasized that “ The Constitution diffuses power the better to secure liberty.’” Morrison, supra, at 694 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)). See also Morrison, supra, at 697 (Scalia, J., dissenting) (“The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of á just Government”). Recognizing this, the Court has repeatedly adjudicated separation-of-powers claims brought by people acting in their individual capacities. See, e. g., Mistretta, supra (adjudicating claim that United States Sentencing Commission violates separation of powers on direct appeal by an individual defendant who had been sentenced pursuant to guidelines created by the Commission).
What the Court has said of the allocation of powers among branches is no less true of such allocations within the Legislative Branch. See, e. g., Chadha, supra, at 948-951 (bicameral National Legislature essential to protect liberty); The Federalist No. 63 (defending bicameral Congress on ground that each House will keep the other in check). The Constitution allocates different powers and responsibilities to the House and Senate. Compare, e. g., U. S. Const., Art. II, §2, cl. 2 (giving Senate “Advice and Consent” power over treaties and appointment of ambassadors, judges, and other officers of the United States), with Art. I, §7, cl. 1 (stating that “[a]ll Bills for raising Revenue shall originate in the House of Representatives”). The authors of the Constitution divided such functions between the two Houses based in part on their perceptions of the differing characteristics of the entities. See The Federalist No. 58 (defending the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue); The Federalist No. 64 (justifying advice and consent function of the Senate on the ground that representatives with longer terms would better serve complex national goals). At base, though, the Framers’ purpose was to protect individual rights. As James Madison said in defense of that Clause: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” The Federalist No. 58, p. 859 (C. Rossiter ed. 1961). Provisions for the separation of powers within the Legislative Branch are thus not different in kind from provisions concerning relations between the branches; both sets of provisions safeguard liberty.
The Government also suggests that a second Baker factor justifies our finding that this case is nonjusticiable: The Court could not fashion “judicially manageable standards” for determining either whether a bill is “for raising Revenue” or where a bill “originates.” We do not agree. The Government concedes, as it must, that the “general nature of the inquiry, which involves the analysis of statutes and legislative materials, is one that is familiar to the courts and often central to the judicial function.” Brief for United States 9. To be sure, the courts must develop standards for making the revenue and origination determinations, but the Government suggests no reason that developing such standards will be more difficult in this context than in any other. Surely a judicial system capable of determining when punishment is “cruel and unusual,” when bail is “[ejxcessive,” when searches are “unreasonable,” and when congressional action is “necessary and proper” for executing an enumerated power is capable of making the more prosaic judgments demanded by adjudication of Origination Clause challenges.
In short, this case has none of the characteristics that Baker v. Carr identified as essential to a finding that a case raises a political question. It is therefore justiciable.
B
Although Justice Stevens agrees with the Government that this Court should not entertain Origination Clause challenges, he relies, on a novel theory that the Government does not advance. He notes that the Constitution is silent as to the consequences of a violation of the Origination Clause, but that it provides by implication that any bill that passes both Houses and is signed by the President becomes a law. See Art. I, § 7, cl. 2; post, at 401-403, and n. 1. From this Justice Stevens infers the proposition that “some bills may become law even if they are improperly originated.” Post, at 403.
We cannot agree with Justice Stevens’ approach. The better reading of § 7 gives effect to all of its Clauses in determining what procedures the Legislative and Executive Branches must follow to enact a law. In the case of “Bills for raising Revenue,” §7 requires that they originate in the House before they can be properly passed by the two Houses and presented to the President. The Origination Clause is no less a requirement than the rest of the section because “it does not specify what consequences follow from an improper origination,” post, at 402. None of the Constitution’s commands explicitly sets out a remedy for its violation. Nevertheless, the principle that the courts will strike down a law when Congress has passed it in violation of such a command has been well settled for almost two centuries. See, e. g., Marbury v. Madison, 1 Cranch 137, 176-180 (1803). That principle applies whether or not the constitutional provision expressly describes the effects that follow from its violation.
Even were we to accept Justice Stevens’ contrary view — that § 7 provides that a bill becomes a “law” even if it is improperly originated — we would not agree with his conclusion that no remedy is available for a violation of the Origination Clause. Rather, the logical consequence of his view is that the Origination Clause would most appropriately be treated as a constitutional requirement separate from the provisions of § 7 that govern when a bill becomes a “law.” Of course, saying that a bill becomes a “law” within the meaning of the second Clause does not answer the question whether that “law” is constitutional. To survive this Court’s scrutiny, the “law” must comply with all relevant constitutional limits. A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would be a law passed in violation of the First Amendment.
Ill
Both parties agree that “revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.” Twin City Bank v. Nebeker, 167 U. S. 196, 202 (1897) (citing 1 J. Story, Commentaries on the Constitution § 880, pp. 610-611 (3d ed. 1858)). The Court has interpreted this general rule to mean that a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support Government generally, is not a “Bil[l] for raising Revenue” within the meaning of the Origination Clause. For example, the Court in Nebeker rejected an Origination Clause challenge to what the statute denominated a “tax” on the circulating notes of banking associations. Despite its label, “[t]he tax was a means for effectually accomplishing the great object of giving to the people a currency .... There was no purpose by the act or by any of its provisions to raise revenue to be applied in meeting the expenses or obligations of the Government.” Nebeker, supra, at 203. The Court reiterated the point in Millard v. Roberts, 202 U. S. 429 (1906), where it upheld a statute that levied property taxes in the District of Columbia to support railroad projects. The Court rejected an Origination Clause claim, concluding that “[wjhatever taxes are imposed are but means to the purposes provided by the act.” Id., at 437.
This case falls squarely within the holdings in Nebeker and Millard. The Victims of Crime Act of 1984 established a Crime Victims Fund, 98 Stat. 2170, 42 U. S. C. § 10601(a) (1982 ed., Supp. II), as a federal source of funds for programs that compensate. and assist crime victims. See § 10601(d) (allocating moneys among programs); § 10602 (delineating eligible compensation programs); §10603 (delineating eligible assistance programs). The scheme established by the Act includes various mechanisms to provide money for the Fund, including the simultaneously enacted special assessment provision at issue in this case. § 10601(b)(2). Congress also specified, however, that if the total income to the Fund from all sources exceeded $100 million in any one year, the excess would be deposited in the general fund of the Treasury. § 10601(c)(1). Although nothing in the text or the legislative history of the statute explicitly indicates whether Congress expected that the $100 million cap would ever be exceeded, in fact it never was. The Government reports that the first and only excess occurred in fiscal year 1989, when the cap stood at $125 million and receipts were between $133 million and $134 million, Brief for United States 21, n. 21, a claim respondent does not dispute, Brief for Respondent 19, n. 16.
Moreover, only a small percentage of any excess paid into the General Treasury can be attributed to the special assessments. The legislative history of the special assessment provision indicates that Congress anticipated that “substantial amounts [would] not result” from that source of funds. S. Rep. No. 98-497, p. 13 (1984). Reality has accorded with Congress’ prediction. See U. S. Dept, of Justice, Office for Victims of Crime, Office of Justice Programs, Victims of Crime Act of 1984: A Report to Congress by the Attorney General 12 (1988) (§ 3013 revenues accounted for four percent of all deposits into the Fund received by United States Attorneys’ Offices for fiscal year 1987). Four percent of a minimal and infrequent excess over the statutory cap is properly considered “incidental].”
As in Nebeker and Millard, then, the special assessment provision was passed as part of a particular program to provide money for that program — the Crime Victims Fund. Although any excess was to go to the Treasury, there is no evidence that Congress contemplated the possibility of a substantial excess, nor did such an excess in fact materialize. Any revenue for the general Treasury that § 3013 creates is thus “incidental]” to that provision’s primary purpose. This conclusion is reinforced, not undermined, by the Senate Report that respondent claims establishes that § 3013 is a “Bil[l] for raising Revenue.” That Report reads: “The purpose of imposing nominal assessment fees is to generate needed income to offset the cost of the [Crime Victims Fund]. Although substantial amounts will not result, these additional amounts will be helpful in financing the program and will constitute new income for the Federal government.” S. Rep. No. 98-497, supra, at 13-14 (emphasis added). Respondent’s reliance on the emphasized portion of the quoted passage avails him nothing. Read in its entirety, the passage clearly evidences Congress’ intent that § 3013 provide funds primarily to support the Crime Victims Fund.
Respondent next contends that even if §3013 is directed entirely to providing support for the Crime Victims Fund, it still does not fall within the ambit of Nebeker or Millard. Respondent accurately notes that the § 3013 assessments are not collected for the benefit of the payors, those convicted of federal crimes. He then contends, citing Nebeker and Millard, that any bill that provides for the collection of funds is a revenue bill unless it is designed to benefit the persons from whom the funds are collected. Respondent misreads Nebeker and Millard. In neither of those cases did the Court state that a bill must benefit the payor to avoid classification as a revenue bill. Indeed, had the Court adopted such a caveat, the Court in Nebeker would have found the statute to be unconstitutional. There, the Court expressly identified the “people” generally, rather than the banking associations required to pay the tax, as the beneficiaries of the system of currency at issue. 167 U. S., at 203. It nevertheless found that the bill was not a revenue bill, stating that a bill creating a discrete governmental program and providing sources for its financial support is not a revenue bill simply because it creates revenue, a holding that was reaffirmed by Millard. See supra, at 397-398. Thus, the beneficiaries of the bill are not relevant.
Section 3013 is not a “Bil[l] for raising Revenue.” We therefore need not consider whether the Origination Clause would require its invalidation if it were a revenue bill. Nebeker, 167 U. S., at 203 (holding consideration of origination question “unnecessary” in light of finding that bill was not a revenue bill).
IV
We hold that this case does not raise a political question and is justiciable. Because the bill at issue here was not one for raising revenue, it could not have been passed in violation of the Origination Clause. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
The Ninth Circuit’s ruling that § 3013 was passed in violation of the Origination Clause is inconsistent with the holdings of the other six Courts of Appeals that have considered the issue. See United States v. Griffin, 884 F. 2d 655, 656-657 (CA2 1989) (§ 3013 not a “Bil[l] for raising Revenue”); United States v. Simpson, 885 F. 2d 36, 40 (CA3 1989) (same); United States v. Herrada, 887 F. 2d 524, 527 (CA5 1989) (same); United States v. Ashburn, 884 F. 2d 901, 903 (CA6 1989) (same); United States v. Tholl, 895 F. 2d 1178, 1181-1182 (CA7 1990) (same); United States v. King, 891 F. 2d 780, 782 (CA10 1989) (same).
This Court has reserved the question whether “there is judicial power after an act of Congress has been duly promulgated to inquire in which House it originated.” Rainey v. United States, 232 U. S. 310, 317 (1914). The Court has, however, resolved an Origination Clause claim without suggesting that the claim might be nonjusticiable. Millard v. Roberts, 202 U. S. 429, 436-437 (1906).
No Court of Appeals has held that an Origination Clause challenge to § 3013 raises a political question. The Ninth Circuit in this case rejected the claim that the issue raises a political question, 863 F. 2d 654, 656-657 (1988), and the Third Circuit has reached the same conclusion, Simpson, supra, at 38-39. Three Circuits have addressed the merits of an Origination Clause claim without mentioning the political question doctrine, Griffin, supra; Ashbum, supra; King, supra; and two Circuits have refused to decide whether the issue raises a political question, Herrada, supra, at 525, and n. 1; Tholl, supra, at 1181-1182, n. 7. But cf. Texas Assn. of Concerned Taxpayers, Inc. v. United States, 772 F. 2d 163 (CA5 1985) (holding that an Origination Clause challenge to the Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 324, presented a nonjusticiable political question).
The Government does not argue that all of the factors enunciated in Baker v. Carr, 369 U. S. 186, 217 (1962), suggest that this case raises a political question. The Government concedes that no provision of the Constitution demonstrably commits to the House of Representatives the determination of where a bill originated. Brief for United States 9. Moreover, the Government does not suggest that answering the origination question requires any sort of “initial policy determination” that courts ought not make or that the question presents an “unusual need for unquestioning adherence to a political decision already made.” Nor does it suggest that there is any more danger of “multifarious pronouncements” in this context than in any other in which a court determines the constitutionality of a federal law. Baker v. Carr, supra, at 217.
Justice Scalia apparently would revisit Poivell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Marshall Field & Co. v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence” the Court would consider in determining whether a bill had actually passed Congress. Id., at 670. Appellants had argued that the constitutional Clause providing that “[e]ach House shall keep a Journal of its Proceedings” implied that whether a bill had passed must be determined by an examination of the journals. See ibid, (quoting Art. I, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id., at 670-671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments” demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id., at 672. Where, as here, a constitutional provision is implicated, Field does not apply.
In an attempt to resurrect in another guise an argument that we have rejected, see supra, at 392-394, Justice Stevens seeks to differentiate the Origination Clause from such other constitutional provisions by suggesting that the House would more effectively ensure compliance with the Clause than would this Court. Post, at 403-406. Yet he apparently concedes that this case is justiciable despite his argument that the House is a better forum than the Judiciary for the resolution of Origination Clause disputes. The reasoning does not become persuasive merely because it is used for a different purpose, and we continue to reject it.
The statute has since been amended to provide a cap of $125 million through fiscal year 1991. 102 Stat. 4419, 42 U. S. C. § 10601(c)(l)(B)(i). The amendment also provides that the Judicial Branch will receive the first $2.2 million of excess collections to cover the costs of assessing and collecting criminal fines. § 10601(c)(1)(A). After fiscal year 1991, the cap will be $150 million through fiscal year 1994. § 10601(c)(l)(B)(ii).
A different case might be presented if the program funded were entirely unrelated to the persons paying for the program. Here, § 3013 targets people convicted of federal crimes, a group to which some part of the expenses associated with compensating and assisting victims of crime can fairly be attributed. Whether a bill would be “for raising Revenue” where the connection between payor and program was more attenuated is not now before us.
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_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Edward BUNDY, Jr., Plaintiff, Appellant, v. Richard A. WILSON, Superintendant, Cheshire County House of Correction, Defendant, Appellee.
Bryan COLPITT, Plaintiff, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison, Defendant, Appellee.
Nos. 86-1703, 86-1831.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1987.
Decided March 20, 1987.
James E. Duggan with whom Joanne Green, Appellate Defender Program, Concord, N.H., was on brief for plaintiffs, appellants.
John S. Davis with whom Stephen E. Merrill, Atty. Gen., and Robert B. Muh, Asst. Atty. Gen., Criminal Justice Bureau, Concord, N.H., were on brief for defendants, appellees.
Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge and GIGNOUX, Senior District Judge.
Of the District of Maine, sitting by designation.
BOWNES, Circuit Judge.
In these consolidated cases, convicted felony defendants, Edward Bundy, Jr., and Bryan Colpitt, challenge the constitutionality of New Hampshire’s appellate process for criminal defendants. Appellants contend that their due process rights were violated because the New Hampshire Supreme Court disposed of their appeals without granting them access to an adequate trial record and a meaningful opportunity to persuade the court that their appeals should be accepted.
I.
Appellant Bryan Colpitt was convicted of robbery following a two-day jury trial in Strafford County Superior Court. He was sentenced to serve two and one-half to five years in the state prison. Colpitt filed a timely notice of appeal in the New Hampshire Supreme Court. Colpitt’s notice of appeal raised six issues, including the trial court’s refusal to conduct a mid-trial hearing on his competency and its failure to strike three misstatements of the evidence allegedly made by the prosecution during closing argument.
Appellant Edward Bundy was convicted of automobile theft by a jury in Cheshire County Superior Court. He was sentenced to twelve months in jail, with all but thirty days suspended. Bundy filed a notice of appeal challenging the sufficiency of the evidence and the alleged encroachment of the trial judge into the province of the jury by virtue of his answering “No” to its mid-deliberation question: “Does the law read that a person has to be driving a car to be charged with theft?”
The notices of appeal filed by Bundy and Colpitt were reviewed by the New Hampshire Supreme Court. The court disposed of their petitions for review in accordance with New Hampshire Supreme Court Rule 7(1), which provides: “The supreme court may, in its discretion, decline to accept an appeal from a lower court after a decision on the merits, or may summarily dispose of such an appeal as provided in rule 25.” The court chose to dispose of appellants’ petitions for review by issuing a “declination of acceptance order.” Such an order issues when the New Hampshire Supreme Court “does not deem it desirable to review the issues in a case____” N.H.Sup.CtR. 3. A declination of acceptance order disposes of a defendant’s appeal without any implication regarding the court’s views on the merits of the claim; it simply permits the decision of the lower court to stand undisturbed. The New Hampshire Supreme Court issues its declination of acceptance order on the basis of the notice of appeal. A transcript normally does not accompany the notice of appeal. See N.H.Sup.Ct.R. 15; Douglas, Summary Disposition The New Hampshire Supreme Court’s Innovative and Unique Approach to Appellate Case Processing, 27 N.H.B.J. 211, 215-16 (1986).
Both appellants sought reconsideration of the supreme court’s declination of acceptance orders. Their motions were denied without explanation. They then sought habeas relief in the United States District Court for the District of New Hampshire under 28 U.S.C. § 2254 (1982). Appellants advanced the same issues in their habeas petitions as they had raised in their notice of appeal to the New Hampshire Supreme Court, plus an additional claim challenging the constitutionality of the declination process.
The district court ordered the State of New Hampshire to produce a transcript of both proceedings. Both appellants, after reviewing the transcripts of their respective trials, conceded that some of the issues they had pressed to the supreme court and the district court were without merit. Col-pitt, however, continued to urge that he was erroneously denied a competency hearing by the trial court. The district court, however, upheld the trial judge’s refusal to hold a competency hearing, noting that this decision was “amply supported by record evidence.” Bundy dropped his sufficiency of the evidence claim, but continued to assert that the trial court had impermissibly invaded the province of the jury by answering “No” to the question of whether a defendant must be driving a stolen car to be guilty of automobile theft. Bundy argued that the judge’s answer constituted a resolution of the factual issue of whether Bundy exercised sufficient control over the car to be guilty of theft. The district court held that the jury’s question did not reflect any uncertainty regarding a factual issue, but was merely a request for guidance “as to whether it was permissible to find [Bun-dy] guilty if he had not driven the automobile.”
Neither Bundy nor Colpitt succeeded in persuading the district court that New Hampshire’s criminal appellate process was unconstitutional, 638 F.Supp. 1277. Both appealed the district court’s denial of habe-as relief. The cases were consolidated by order of this court on September 12, 1986.
II.
The fundamental issue is whether the New Hampshire Supreme Court’s declination of appeals procedure comports with the strictures of due process. Appellants aver that, at a minimum, due process requires that criminal defendants whose liberty is at stake be afforded a trial transcript or sufficient substitute therefor and the right to submit a written argument to persuade the supreme court to hear their cases on the merits. Appellants contend that they cannot adequately present — nor can the supreme court fairly decide whether to accept — their appeals, without an opportunity to consult a transcript and marshal in writing the salient facts.
In its appellate brief to this court, the state has conceded the following:
(1) the New Hampshire Supreme Court misapplied its own rules in declining to review appellant Colpitt’s conviction;
(2) due process principles apply to the court’s system of discretionary appellate review;
(3) in certain circumstances, due process requires, upon a sufficient showing of need, that an appellant be afforded an opportunity to review and present to the court relevant portions of the transcript of his trial prior to the court’s decision whether to accept the appeal;
(4) appellant Colpitt, with respect to the issue of the competency hearing, made such a showing of need in his notice of appeal and his motion to reconsider declination of appeal; and
(5) the New Hampshire Supreme Court violated appellant Colpitt’s rights to due process of law when it issued its declination order.
Brief for the State at-.
The State thus concedes that the New Hampshire Supreme Court denied appellant Colpitt due process by failing to afford him access to a transcript in order to prepare and present his request for appellate review. Moreover, the State implies that there may be other circumstances in which due process would require providing criminal defendants with a transcript in order to have a meaningful opportunity to persuade the court to accept their appeals. But while the State concedes that there will be instances in which the normal operation of New Hampshire’s declination of acceptance procedure will lead to due process violations, it does not share appellants’ view that there is a systemic constitutional infirmity. Indeed, the State hints that the principal cause of Colpitt’s due process violation was the New Hampshire Supreme Court’s “misapplication of its own rules.” This is a far cry from appellants’ contention that constitutional defects inhere in the regular application of those rules.
In short, the State has conceded only that, as applied to appellant Colpitt, New Hampshire’s declination of acceptance procedure violates due process. The State has made no such concession with respect to appellant Bundy. His challenge to the constitutionality of New Hampshire’s system of appeals for criminal defendants is unaffected by the State’s concession. Thus, notwithstanding the State’s posture toward appellant Colpitt, our inquiry must still focus on whether the New Hampshire declination of acceptance procedure, as presently administered, violates due process.
III.
Virtually every state in the country, as well as the District of Columbia and the Commonwealth of Puerto Rico, grants felony criminal defendants an automatic right to at least one full appeal on the merits. Most states provide criminal defendants with automatic review in an intermediate court of appeals. The supreme court in these states generally has discretion to accept cases after they have been reviewed by the intermediate court of appeals. States which do not have two tiers of appellate review provide criminal defendants with an appeal as of right to the state supreme court. Virginia and West Virginia are the only other states besides New Hampshire which do not provide felony criminal defendants with an automatic right to an appeal on the merits. The procedural protections afforded a criminal appellant in those states, however, underline the solitariness of the New Hampshire system. In Virginia and West Virginia, a criminal appeal cannot be rejected until an appellate court has fully examined the relevant portions of the record and the defendant has been given a chance to persuade a court of review, both orally and in writing, to hear the case.
New Hampshire is the only state in the nation which does not guarantee to all felony criminal defendants, at a minimum, access to a transcript and an opportunity for argument before disposition of their appeals. The New Hampshire Supreme Court may dispose of a criminal appeal solely on the basis of the information in the notice of appeal. The notice of appeal requires the putative appellant to set forth:
(1) A “brief description” of the nature of the case and the result.
(2) The statute on which the case was based.
(3) The “specific questions to be raised on appeal, expressed in terms and circumstances of the case but without unnecessary detail.”
(4) A list of cases supporting the mov-ant’s position.
There may also be attached to the notice of appeal copies of pertinent pleadings, motions, legal memoranda, statutory and constitutional texts, trial court rulings, and any other relevant documents. The notice of appeal does not ask for a statement of reasons or argument on the question of why an appeal should be accepted.
Once the notice of appeal has been filed, the New Hampshire Supreme Court utilizes a screening procedure to determine whether or not to hear the case on its merits. “The standard governing the making of a declination decision is one of sound judicial discretion with respect to the desirability of our hearing and deciding the case.” State v. Cooper, 127 N.H. 119, 125, 498 A.2d 1209, 1214 (1985). A single justice is assigned to review the notice of appeal and recommend whether to accept the case, decline it, or summarily dispose of it pursuant to New Hampshire Supreme Court Rule 25. Douglas The New Hampshire Supreme Court’s Approach to Appellate Case Processing, 27 N.H.B.J. at 215. The other four justices on the supreme court subsequently review the recommendation of the screening justice. If the screening justice suggests that the appeal be declined, his recommendation will be upheld unless one of the other four justices disagrees.
The New Hampshire Supreme Court recently considered a challenge to the constitutionality of its own procedures for criminal appeals in State v. Cooper, 127 N.H. 119, 498 A.2d 1209. The appellants-defendants in Cooper claimed that the New Hampshire rules permitted the supreme court to decline appeals arbitrarily and capriciously simply by invoking a vague standard of “desirability.” They also argued that the declination of acceptance procedure fostered an irrational distinction between meritorious and nonmeritorious appeals. Finally, the Cooper appellants asserted that the declination procedure inhibits counsel from effectively assisting criminal defendants who seek review in the New Hampshire Supreme Court.
The Cooper court stated that New Hampshire instituted a discretionary system of appellate review because the supreme court’s case load had “mushroomed in recent years.” 127 N.H. at 126, 498 A.2d at 1214. The court correctly recognized that the Constitution does not grant a criminal defendant the right to an appeal. 127 N.H. at 122, 498 A.2d at 1212. Accord Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); McKane v. Durston, 153 U.S. 684, 687-88, 14 S.Ct. 913, 914-15, 38 L.Ed. 867 (1894). It also properly noted that New Hampshire’s criminal appeals system must comport with the strictures of due process. State v. Cooper, 127 N.H. at 122, 498 A.2d at 1212. There can be no question that a discretionary criminal appeals system is subject to the requirements of due process: “[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 838, 83 L.Ed.2d 821 (1985).
After acknowledging that New Hampshire’s discretionary system of criminal appeals was subject to federal due process standards, the state supreme court indicated that those standards were less rigorous when applied to New Hampshire because its system of criminal appeals is discretionary rather than automatic. State v. Cooper, 127 N.H. at 123, 498 A.2d at 1213. The state supreme court cited Evitts and Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), as support for this proposition. In Ross, the Supreme Court ruled that due process and equal protection did not require the State of North Carolina to provide an indigent defendant with counsel in a discretionary appeal to the state supreme court. Vital to the Court’s reasoning was its recognition that North Carolina did provide counsel to criminal defendants who pursued their automatic right of appeal to the state’s intermediate appellate court. Id. at 613-16, 94 S.Ct. at 2445-47. Thus, the crucial distinction advanced in Ross is not between discretionary appellate systems and automatic appellate systems. Rather, the key difference considered in both Evitts and Ross concerned the nature of constitutional protections in a single system which employed both a first appeal as of right to an intermediate court, and a subsequent discretionary appeal to the state supreme court. Evitts v. Lucey, 469 U.S. at 401-02, 105 S.Ct. at 835-36; Ross v. Moffit, 417 U.S. at 613-16, 94 S.Ct. at 2445-47. Indeed, the distinction between a first appeal of right and subsequent discretionary appeal within the same appellate system has been made by the Court in other cases. United States v. MacCollum, 426 U.S. 317, 324, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976); Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963). The Court, however, has not drawn a line between discretionary appellate systems and automatic appellate systems for the purpose of gauging the degree of due process protection owed a criminal appellant.
After asserting that discretionary appellate systems are subject to a less rigorous due process standard than automatic appellate systems, the Cooper court defended the constitutionality of the New Hampshire system by noting that its standards for acceptance of an appeal are similar to those utilized by the state supreme courts in Illinois and Tennessee. State v. Cooper, 127 N.H. at 126-27, 498 A.2d at 1215. The New Hampshire Supreme Court, however, failed to note that both of those states provide a criminal defendant with a first appeal as of right to an intermediate court of appeals. Thus, the court again drew a conclusion regarding single-tiered discretionary appellate systems based on jurisdictions with multi-tiered appellate systems which provided criminal defendants with at least one appeal as of right.
We must note our disagreement with the New Hampshire Supreme Court’s conclusion that single-tiered discretionary appellate systems are subject to less rigorous due process strictures than multi-tiered appellate systems providing at least one appeal of right. The issue of whether the instant appellants are entitled to a transcript and an opportunity to persuade the state supreme court to accept their appeals does not turn on whether New Hampshire’s appellate system is discretionary or automatic. The pertinent due process question is whether criminal appellants in New Hampshire are provided “an adequate opportunity to present their claims fairly within the adversary system.” Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1094, 84 L.Ed.2d 53 (1985) (quoting Ross v. Moffit, 417 U.S. at 612, 94 S.Ct. at 2444). We turn now to this question.
IV.
The fourteenth amendment’s due process guarantee of fundamental fairness requires states to provide a criminal defendant with “the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The Supreme Court has stated that it is a criminal defendant’s “access to the record which makes any appellate review mean-ingful____” Gardner v. California, 393 U.S. 367, 368, 89 S.Ct. 580, 581, 21 L.Ed.2d 601 (1969). Accordingly, “there can be no doubt that the State must provide an indigent defendant with a transcript when that transcript is needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). Accord Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The Court also has emphasized that the holdings in the line of cases that began with Griffin, involving a criminal defendant’s right of access to a transcript, are rooted firmly in both the due process and equal protection clauses of the fourteenth amendment. Evitts v. Lucey, 469 U.S. at 403-04,105 S.Ct. at 839-40.
It is clear that the Court regards access to a transcript as an essential element for ensuring that a criminal appellant has “an adequate opportunity to present his claims fairly in the context of a State’s appellate process.” Id. at 402, 105 S.Ct. at 839. Decisions of circuit courts of appeals in this area affirm this assessment. See, e.g., Byrd v. Wainwright, 722 F.2d 716 (11th Cir.) (criminal defendant has a constitutional right to a transcript in order to petition the state supreme court for discretionary review of his conviction), cert. denied, 469 U.S. 869, 105 S.Ct. 217, 83 L.Ed.2d 147 (1984); Thompson v. Housewright, 741 F.2d 213 (8th Cir.1984); Oliver v. Zimmerman, 720 F.2d 766 (3d Cir.1983), cert. denied, 465 U.S. 1033, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984); United States ex rel. Burton v. Greer, 643 F.2d 466 (7th Cir. 1981); United States ex rel. Buford v. Henderson, 524 F.2d 147 (2d Cir.1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1133, 47 L.Ed.2d 332 (1976).
Having identified the constitutional significance which the Court attaches to a criminal appellant’s access to a transcript, we turn now to an evaluation of whether New Hampshire’s declination of appeals procedure violates due process.
V.
The Supreme Court has identified three distinct factors that must be considered when evaluating a claim of due process deprivation. First, the private interest that is affected by the official action. Second, the risk of an erroneous deprivation caused by the procedures used, and the probable value, if any, of additional procedural safeguards. Third, the governmental interest at stake, including the function involved and the fiscal and administrative burden engendered by additional procedural requirements. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
A.
The private interest at stake here is the appellants’ “opportunity to participate meaningfully in a judicial proceeding in which [their] liberty is at stake.” Ake v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The appellants seek to guard their interest in an accurate disposition of their appeals by obtaining procedural protections that will provide them with a full and fair opportunity to present their cases for review, and thus ensure the proper functioning of the adversary system. See Gardner v. California, 393 U.S. at 369, 89 S.Ct. at 582. The Supreme Court has recognized that such an interest is of paramount importance: “The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.” Ake v. Oklahoma, 470 U.S. at 78, 105 S.Ct. at 1094.
We note that the “uniquely compelling” interest at stake here carries even greater significance because appellants have only one chance, at the discretion of the New Hampshire Supreme Court, to obtain state appellate review of alleged errors that led to their incarceration.
B.
The risk of an erroneous deprivation of felony defendants’ interests in fairly and meaningfully presenting their appeals is heightened immeasurably by the failure to afford them a transcript. A transcript is “the most basic and fundamental tool” of effective appellate advocacy. Hardy v. United States, 375 U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331 (1964) (Goldberg, J., concurring). Our discussion in Section IV manifests the importance with which the Supreme Court regards access to a transcript. The Court has instructed that the due process mandate of fundamental fairness requires states to furnish criminal appellants with a trial transcript or an adequate substitute. E.g., Britt v. North Carolina, 404 U.S. at 227-30, 92 S.Ct. at 433-35; Draper v. Washington, 372 U.S. at 496, 83 S.Ct. at 779; Griffin v. Illinois, 351 U.S. at 20, 76 S.Ct. at 591; see also Evitts v. Lucey, 469 U.S. at 403-05, 105 S.Ct. at 840-41 (emphasizing the due process roots of Griffin and its progeny). An adequate substitute for a transcript is a document which would “place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper v. Washington, 372 U.S. at 495, 83 S.Ct. at 778.
The Court’s solicitude regarding the furnishing of transcripts not only stems from the necessity of granting a criminal appellant a meaningful and fair opportunity to present his appeal; it also derives from a concern with ensuring that appellate courts have a full and accurate understanding of an appellant’s contentions before dispensing with his appeal. Such concern pertains here regardless of the fact that the New Hampshire Supreme Court is not bound, either by the Constitution or its own rules, to actually decide the merits of an appeal. The New Hampshire Supreme Court has stated that the “right to appeal in New Hampshire is limited to the right to obtain a discretionary determination by this court as to whether it will accept the appeal.” State v. Cooper, 127 N.H. at 124, 498 A.2d at 1213. This discretionary determination, however, cannot be made without regard for the constraints of due process. Evitts v. Lucey, 469 U.S. at 401, 105 S.Ct. at 838-39. To the extent that due process requires safeguards to assure the fair and accurate disposition of official proceedings, those safeguards must be heeded regardless of the fact that the proceedings are undertaken at the discretion of the government. Id.; see also Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970).
The facts of the instant appeals illustrate the dual justification for providing criminal appellants with transcripts. Appellant Col-pitt alleged on appeal that he was entitled to a mid-trial competency hearing. The suasive force of Colpitt’s claim was undercut by his inability to point to statements made on the record which cast doubt on his competency. In addition, the New Hampshire Supreme Court could not fully and accurately assess Colpitt’s need for a mid-trial competency hearing without examining the evidence which called into question his mental capacity.
Appellant Bundy’s state court appeal alleged claims of insufficient evidence and improper invasion of the jury’s province by the trial judge. Although Bundy later dropped his claim regarding sufficiency of the evidence, it is axiomatic that an appellant cannot meaningfully present such a claim without pointing to the specific areas where the prosecution failed to meet its evidentiary burden. As appellate court judges, we are mindful of the skepticism which is engendered by bald assertions of insufficient evidence unsupported by any citation to specific portions of the record. We realize, as already noted, that the New Hampshire Supreme Court is not bound to decide the merits of whether the evidence sufficed to convict Bundy. But the court cannot decide to decline criminal defendants a full review on the merits of their appeals “without first granting them a ‘record of sufficient completeness’ to permit proper consideration of their claims.” Draper v. Washington, 372 U.S. at 499, 83 S.Ct. at 780; see also Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). Due process thus prohibits the New Hampshire Supreme Court from arbitrarily and capriciously deciding to decline to consider Bundy’s sufficiency of the evidence claim. The state supreme court necessarily must make at least a rough assessment that the evidence is sufficient in order for its decision to accord with due process. We think it impossible for a reviewing court to make even a rough assessment of the sufficiency of the evidence without some reference to the trial court record. The accuracy of this rough assessment is especially important in New Hampshire for it will most likely determine the “desirability” of accepting the appeal.
Bundy’s other state appellate claim, which he has continued to press, involved an alleged infringement into the province of the jury by the trial judge when he answered “No” to its question of whether “the law read[s] that a person has to be driving a car to be charged with theft?”. Without an opportunity to make references to the record, Bundy’s counsel was hard-pressed to support his assertion that the judge’s answer resolved a factual question for the jury. Standing alone, the judge’s answer appears to be nothing more than a correct statement of the law. The record reveals, however, that Bundy was only a passenger in the car when it was stolen and that the jury had requested another instruction regarding “exercising control.” In short, the record shows that the jury was struggling to resolve the factual question of whether Bundy had exercised enough control over the car to be adjudged guilty of theft. Thus, a colorable claim could be advanced that the jury regarded the judge’s answer to the question as obviating further exploration of the crucial factual element in the case. The plausibility of this argument could not, however, be advanced effectively without an opportunity to make appropriate citations to the record.
We also are of the opinion that appellants’ interest in meaningfully and fairly presenting their claims was curtailed severely by New Hampshire’s failure to allow felony criminal defendants an opportunity to persuade the court to accept their appeals. The New Hampshire notice of appeal form is, by its own terms, a summary document which requests only a “brief description of the case,” and a recitation of the basis for the appeal “without unnecessary detail.” Thus, not only are criminal appellants unable to marshal coherently the salient facts in their case because of the lack of a transcript, but, in addition, the language of the notice of appeal form discourages them from attempting to persuade the state supreme court to hear their appeals. Yet it is that very form which serves as the basis for the court’s decision to accept or refuse the case.
We think that the failure to provide criminal appellants with a transcript, and the perfunctory outline of the basis for the appeal required by the notice of appeal, seriously threatens the interest of criminal defendants in obtaining meaningful review in New Hampshire’s appellate system. The State’s concession with respect to appellant Colpitt, and the situation of appellant Bundy, illustrate the real and continuing risk of an erroneous deprivation of a defendant’s due process rights inherent in the current manner of administering New Hampshire’s declination of acceptance procedure.
C.
The third due process factor identified in Mathews focuses on the governmental interest at stake, as well as the fiscal and administrative burden of imposing additional procedures. The State interest implicated here is the speedy and efficient disposition of New Hampshire’s appellate case load. New Hampshire contends that the supreme court’s growing case load prohibits it from providing criminal defendants with a transcript and an opportunity to submit a brief written statement which attempts to persuade the court to accept their appeals. This claim is seriously undermined by the fact that every other state in the union which employs a single-tiered system of appeals can manage its case load while providing criminal defendants with more opportunity for appellate review than is sought by the appellants here.
New Hampshire’s interest in the speedy and efficient disposition of its appellate case load “is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.” Ake v. Oklahoma, 470 U.S. at 79,105 S.Ct. at 1094-95. Thus, to a significant degree, the governmental interest implicated here overlaps the private interest which is at stake. Accordingly, New Hampshire’s interest in denying a criminal appellant a transcript and a brief written argument “is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions.” Id.
We may wonder whether the administrative efficiency component of the State interest at stake here actually may be helped, rather than hindered, by adopting the additional procedural safeguards sought. Providing felony defendants with a transcript and an express opportunity to persuade the court to accept the appeal would reduce the need to attach a lengthy appendix composed of pleadings, motions and other documents. Thus, the New Hampshire Supreme Court would have a concise document on hand to aid its determination of whether to accept or decline an appeal. Moreover, the availability of a transcript might help reduce the court’s work load by enabling counsel to eliminate seemingly colorable claims whose actual meritlessness is revealed from an examination of the record. In the instant case, both Bundy and Colpitt dropped some of their claims after consulting the transcript made available to them by the federal district court. In any event, whatever the impact on administrative efficiency, it is of no great significance when compared to the importance of the interest advanced by appellants.
D.
In' sum, an examination of the Mathews factors indicates that we are faced with a “uniquely compelling” private interest; a relatively insubstantial state interest that might actually be advanced by adopting the additional procedures suggested here; and a serious risk of a deprivation of appellants’ interest in a fair and meaningful opportunity to participate in New Hampshire’s appellate process. Accordingly, we hold that the New Hampshire Supreme Court’s declination of the state court appeals brought by the instant appellants violated their due process rights, because the decision was made without giving appellants a transcript or an opportunity to persuade the court to accept their appeals.
VI.
As currently administered, the New Hampshire Supreme Court’s declination of acceptance procedure violates the constitutional rights of felony defendants who assert appellate claims which have their basis in the record. The fundamental fairness guaranteed by the due process clause requires that such defendants be granted a transcript, or an adequate written substitute, and an opportunity to submit a brief written statement specifically focusing on why their appeals should be accepted.
Such requirements fall far below the procedural protections afforded criminal appellants in every other state in the country. Moreover, these requirements cannot be equated with granting criminal defendants an appeal as of right. The New Hampshire Supreme Court is still free to decline to accept cases. It cannot do so, however, until criminal appellants have been afforded the procedural protections delineated here.
Of course, not all criminal appellants will be entitled to a transcript. Those who assert appellate claims which do not arise out of any of the events at trial will not need recourse to the record to fairly and meaningfully present arguments why their appeals should be accepted. Thus, for example, a challenge to the sufficiency of the indictment or a question of statutory interpretation will not usually necessitate the production of a transcript. Every criminal defendant who has been convicted of a felony is, however, entitled to an opportunity to persuade the New Hampshire Supreme Court, via a written statement, to accept his appeal.
Even if a criminal defendant asserts an appellate claim which requires recourse to a transcript, he is not necessarily entitled to the full transcript. A defendant’s right to a transcript can be satisfied by providing him with a written substitute that reports the portions of the trial which underlie his appellate contentions. Draper v. Washington, 372 U.S. at 495, 83 S.Ct. at 778; see also Britt v. North Carolina, 404 U.S. at 229, 92 S.Ct. at 434; Mayer v. City of Chicago, 404 U.S. at 194-95, 92 S.Ct. at 414-15; Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir.1982). In some cases, other types of substitutes might suffice. For instance, where a defendant appeals a denial of a motion to suppress evidence, a joint statement of facts may satisfy his right of access to the record. The threshold requirement is that a criminal appellant be provided with “a record of sufficient completeness to permit proper consideration of his claims.” Mayer v. City of Chicago, 404 U.S. at 194, 92 S.Ct. at 414 (quoting Draper v. Washington, 372 U.S. at 499, 83 S.Ct. at 780). If a criminal appellant claims he must have access to the full transcript, he does not bear the burden of demonstrating the inadequacy of alternatives proposed by the State or suggested by a court in hindsight. Britt v. North Carolina, 404 U.S. at 230, 92 S.Ct. at 435. Instead, when the grounds of his appeal indicate “a colorable claim for a complete transcript, the burden is on the State to show that only a portion of the transcript or an alternative will suffice for an effective appeal on those grounds.” Mayer v. City of Chicago, 404 U.S. at 195, 92 S.Ct. at 415.
VII.
The judgment of the district court is vacated and the cause is remanded to that court with directions to issue the writs of habeas corpus unless within ninety days of the date of this judgment the New Hampshire Supreme Court agrees to accept from each appellant a brief written argument as to why his appeal should be accepted. There is no need to order the State to furnish the appellants with trial transcripts in this instance because they were ordered by the district court for the habeas proceedings and have been available to the appellants.
So Ordered.
Costs awarded to appellants.
APPENDIX
Summary of the right to appeal by
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_certreason
|
B
|
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.
UNITED STATES v. WHEELER
No. 76-1629.
Argued January 11,1978
Decided March 22, 1978
Stewart, J., delivered the opinion of the Court, in which all other Members joined except Brennan, J., who took no part in the consideration or decision of the case.
Stephen L. Urbanczyk argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Barnett, Jerome M. Feit, and Michael W. Farrell.
Thomas W. O’Toole argued the cause and filed a brief for respondent.
Mr. Justice Stewart
delivered the opinion of the Court.
The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U. S. C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.
I
On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz., on the Navajo Indian Reservation. He was taken to the tribal jail in Chinle, Ariz., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.
Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona. The respondent moved to dismiss this indictment, claiming that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution. See Brown v. Ohio, 432 U. S. 161. The District Court, rejecting the prosecutor’s argument that “there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States,” dismissed the indictment. The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that since “Indian tribal courts and United States district courts are not arms of separate sovereigns,” the Double Jeopardy Clause barred the respondent’s trial. 545 F. 2d 1255, 1258. We granted certiorari to resolve an intercircuit conflict. 434 U. S. 816.
II
In Bartkus v. Illinois, 359 U. S. 121, and Abbate v. United States, 359 U. S. 187, this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and. a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”:
“An offence, in its legal signification, means the transgression of a law.... Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.... That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20.
It was noted in Abbate, supra, at 195, that the “undesirable consequences” that would result from the imposition of a double jeopardy bar in such circumstances further support the “dual sovereignty” concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws. While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a “marked change in the distribution of powers to administer criminal justice” would not be desirable. Ibid.
The “dual sovereignty” concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U. S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines. And Puerto Rico v. Shell Co., 302 U. S. 253, 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are “creations emanating from the same sovereignty.” Similarly, in Waller v. Florida, 397 U. S. 387, we held that a city and the State of which it is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two- as separate sovereignties.
The respondent contends, and the Court of Appeals held, that the “dual sovereignty” concept should not apply to successive prosecutions by an Indian tribe and the United States because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government., Winton v. Amos, 255 U. S. 373, 391-392; In re Heff, 197 U. S. 488, 498-499; Lone Wolf v. Hitchcock, 187 U. S. 553; Talton v. Mayes, 163 U. S. 376, 384. Because o-f this all-encompassing federal power, the respondent argues that the tribes are merely “arms of the federal government” which, in the words of his brief, “owe their existence and vitality solely to the political department of the federal government.”
We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the “dual sovereignty” concept is applicable and those in which it is not. It is true that Territories are subject to the ultimate control of Congress, and cities to the control of the State which created them. But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co., and Waller. What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken.
Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments “[derive] power from different sources,” each from the organic law that established it. United States v. Lanza, 260 U. S. 377, 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing, so each “is exercising its own sovereignty, not that of the other.” Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.
By contrast, cities are not sovereign entities. “Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Reynolds v. Sims, 377 U. S. 533, 575. A city is nothing more than “an agency of the State.” Williams v. Eggleston, 170 U. S. 304, 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power “derive [s]... from the source of [its] creation.” Mount Pleasant v. Beckwith, 100 U. S. 514, 524. As we said in Waller v. Florida, supra, at 393, “the judicial power to try petitioner... in municipal court springs from the same organic law that created the state court of general jurisdiction.”
Similarly, a territorial government is entirely the creation of Congress, “and its judicial tribunals exert all their powers by authority of the United States.” Grafton v. United States, supra, at 354; see Cincinnati Soap Co. v. United States, 301 U. S. 308, 317; United States v. Kagama, 118 U. S. 375, 380; American Ins. Co. v. Canter, 1 Pet. 511, 542. When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as “an agency of the federal government.” Domenech v. National City Bank, 294 U. S. 199, 204-205.
Thus, in a federal Territory and the Nation, as in a city and a State, “[t]here is but one system of government, or of laws operating within [its] limits.” Benner v. Porter, 9 How. 235, 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone. And the “dual sovereignty” concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes.
Ill
It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain “a separate people, with the power of regulating their internal and social relations.” United States v. Kagama, supra, at 381-382; Cherokee Nation v. Georgia, 5 Pet. 1, 16. Their right oh internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U. S. 641, 643 n. 2; Talton v. Mayes, 163 U. S., at 380; Ex parte Crow Dog, 109 U. S. 656, 571-572; see 18 U. S. C. § 1152 (1976 ed.), infra, n. 21. As discussed above in Part II, the controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?
A
The powers of Indian tribes are, in general, “inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political communities. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.
Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty.” United States v. Kagama, supra, at 381. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.
But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.... [They] are a good deal more than 'private, voluntary organizations.’ ” United States v. Mazurie, 419 U. S. 544, 557; see also Turner v. United States, 248 U. S. 354, 354-355; Cherokee Nation v. Georgia, supra, at 16-17. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, ante, p. 191.
B
It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that “[ijmplicit in these treaty terms... was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” Williams v. Lee, 358 U. S. 217, 221-222; see also Warren Trading Post v. Tax Comm’n, 380 U. S. 685.
Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe’s jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by “any citizen or inhabitant of the United States”; it did not mention crimes committed by Indians. In 1817 federal criminal jurisdiction was extended to crimes committed within the Indian country by “any Indian, or other person or persons,” but “any offence committed by one Indian against another, within any Indian boundary” was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U. S. C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in “Indian country.” In this statute Congress carried forward the intra-Indian offense exception because “the tribes have exclusive jurisdiction” of such offenses and “we can [not] with any justice or propriety extend our laws to” them. H. It. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian “who has been punished by the local law of the tribe.” Act of Mar. 27,1854, § 3,10 Stat. 270. Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.
Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668; Johnson v. M’Intosh, 8 Wheat. 543, 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, p. 191.
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. “[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right to self government, by associating with a stronger, and taking its protection.” Worcester v. Georgia, supra, at 560-561.
C
That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.
It is true that in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts, the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U. S. (¡3. § 1311. Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1 (e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U. S. C. § 476, and the Act of Apr. 19, 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. § 1302, made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both.
But none of these laws created the Indians’ power to* govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under “existing law.” See Powers of Indian Tribes, 55 I. D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.
In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government
D
The conclusion that an Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty is clearly reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U. S. 376. There a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated:
“The case... depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative....
“True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States.... But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States.” Id., at 382-384.
The relevance of Talton v. Mayes to the present case is clear. The Court there held that when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government. Since tribal and federal prosecutions are brought by separate sovereigns, they are not “for the same offence,” and the Double Jeopardy Clause thus does not bar one when the other has occurred.
IV
The respondent contends that, despite the fact that successive tribal and federal prosecutions are not “for the same offence,” the “dual sovereignty” concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of “undesirable consequences” identified in Abbate could occur if successive tribal and federal prosecutions were barred despite the fact that tribal and federal courts are arms of separate sovereigns. Tribal courts can impose m> punishment in excess of six months’ imprisonment or a $500 fine. 25 U. S. C. § 1302 (7). On the other hand, federal jurisdiction over crimes committed by Indians includes many major offenses. 18 U. S. C. § 1153 (1976 ed.). Thus, when both a federal prosecution for a major crime and a tribal prosecution for a lesser included offense are possible, the defendant will often face the potential of a mild tribal punishment and a federal punishment of substantial severity. Indeed, the respondent in the present case faced the possibility of a federal sentence of 15 years in prison, but received a tribal sentence of no more than 75 days and a small fine. In such a case, the prospect of avoiding more severe federal punishment would surely motivate-a member of a tribe charged with the commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations would be frustrated.
This problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to- deprive them of criminal jurisdiction altogether. But such a fundamental abridgment of the powers of Indian tribes- might be thought as undesirable as the federal pre-emption of state criminal jurisdiction that would have avoided conflict in Bartkus and Abbate. The Indian tribes are “distinct political communities” with their own mores and laws, Worcester v. Georgia, 6 Pet., at 557; The Kansas Indians, 5 Wall. 737, 756, which can be enforced by formal criminal proceedings in tribal courts as well as by less formal means. They have a significant interest in maintaining orderly relations among their members and in preserving tribal customs and traditions, apart from the federal interest in law and order on the reservation. Tribal laws and procedures are often influenced by tribal custom and can differ greatly from our own. See Ex parte Crow Dog, 109 U. S., at 571.
Thus, tribal courts are important mechanisms for protecting significant tribal interests. Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal law would detect substantially from tribal self-government, just as federal pre-emption of state criminal jurisdiction would trench upon important state interests. Thus, just as in Bartkus and Abbate, there are persuasive reasons to reject the respondent’s argument that we should arbitrarily ignore the settled “dual sovereignty” concept as it applies to successive tribal and federal prosecutions.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Brennan took no part in the consideration or decision of this case.
The record does not make clear the details of the incident that led to the respondent’s arrest. After the bringing of the federal indictment an evidentiary hearing was held on the respondent’s motion to suppress statements he had made to police officers. This hearing revealed only that the respondent had been intoxicated at the time of his arrest; that his clothing had been disheveled and he had had a bloodstain on his face; that the incident had involved' a Navajo girl; and that the respondent claimed that he had been trying to help the girl, who had been attacked by several other boys.
The record does not reveal how the sentence of the Navajo Tribal Court was carried out.
The indictment charged that “[ojn or about the 16th day of October, 1974, in the District of Arizona, on and within the Navajo Indian Reservation, Indian Country, ANTHONY ROBERT WHEELER, an Indian male, did carnally know a female Indian... not his wife, who had not then attained the age of sixteen years but was fifteen years of age. In violation of Title 18, United States Code, Sections 1153 and 2032.”
At the time of the indictment, 18 U. S. C. § 1153 provided in relevant part:
“Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely,... carnal knowledge of any female, not his wife, who has not attained the age of sixteen years,... within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”
The Major Crimes Act has since been amended in respects not relevant here. Indian Crimes Act of 1976, § 2, 90 Stat. 585.
Title 18 U. S. C. § 2032 (1976 ed.), applicable within areas of exclusive federal jurisdiction, punishes carnal knowledge of any female under 16 years of age who is not the defendant’s wife by imprisonment for up to 15 years.-
The holding of the District Court and the Court of Appeals that the tribal offense of contributing toi the delinquency of a minor was included within the federal offense of statutory rape is not challenged here by the Government.
The decision of the District Court is unreported.
In a later case, the Court of Appeals for the Eighth Circuit held that the Double Jeopardy Clause does not bar successive tribal and federal prosecutions for the same offense, expressly rejecting the view of the Ninth Circuit in the present case. United States v. Walking Crow, 560 F. 2d 386. See also United States v. Elk, 561 F. 2d 133 (CA8); United States v. Kills Plenty, 466 F. 2d 240, 243 n.3 (CA8).
Although the problems arising from concurrent federal and state criminal jurisdiction had been noted earlier, see Houston v. Moore, 5 Wheat. 1, the Court did not clearly address the issue until Fox v. Ohio, 5 How. 410, United States v. Marigold, 9 How. 560, and Moore v. Illinois, 14 How. 13, in the mid-19th century. Those cases upheld the power of States and the Federal Government to make the same act criminal; in each case the possibility of consecutive state and federal prosecutions was raised as an objection to concurrent jurisdiction, and was rejected by the Court on the ground that such multiple prosecutions, if they occurred, would not constitute double jeopardy. The first case in which actual multiple prosecutions were upheld was United States v. Lanza, 260 U. S. 377, involving a prosecution for violation of the Volstead Act, ch. 85, 41 Stat. 305, after a conviction for criminal violation of liquor laws of the State of Washington.
In Abbate itself the petitioners had received prison terms of three months on their state convictions, but faced up to five years’ imprisonment on the federal charge. 359 U. S., at 195. And in Bartkus the Court referred to Screws v. United States, 325 U. S. 91, in which the same facts could give rise to a federal prosecution under what are now 18 U. S. C. §§ 242 and 371 (1976 ed.) (which then carried maximum penalties of one and two years’ imprisonment) and a state prosecution for murder, a capital offense. “Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines.” Bartkus v. Illinois, 359 U. S. 121, 137.
The prohibition against double jeopardy had been made applicable to the Philippines by Act of Congress. Act of July 1, 1902, § 5, 32 Stat. 692. In a previous case, the Court had held it unnecessary to decide whether the Double Jeopardy Clause would have applied within the Philippines of its own force in the absence of this statute. Kepner v. United States, 195 U. S. 100, 124-125.
Colliflower v. Garland, 342 F. 2d 369, 379 (CA9).
Binns v. United States, 194 U. S. 486, 491; De Lima v. Bidwell, 182 U. S. 1, 196-197; Mormon Church v. United States, 136 U. S. 1, 42; Murphy v. Ramsey, 114 U. S. 15, 44-45.
Trenton v. New Jersey, 262 U. S. 182, 187; Hunter v. Pittsburgh, 207 U. S. 161, 178-179; Williams v. Eggleston, 170 U. S. 304, 310; Mount Pleasant v. Beckwith, 100 U. S. 514, 529; see 2 E. McQuillin, Law of Municipal Corporations § 4.03 (3d ed. 1966).
Indeed, in the Shell Co. case the Court noted that Congress had given Puerto Rico “an autonomy similar to that of the states....” 302 U. S, at 262.
Cf. United States v. Lanza, 260 U. S., at 379-382, holding that a State’s power to enact prohibition laws did not derive from the Eighteenth Amendment’s provision that Congress and the States should have concurrent jurisdiction in that area, but rather from the State’s inherent sovereignty.
See also Trenton v. New Jersey, supra, at 185-186; Hunter v. Pittsburgh, supra, at 178; Worcester v. Street R. Co., 196 U. S. 539, 548; Barnes v. District of Columbia, 91 U. S. 540, 544.
Indeed, the relationship of a Territory to the Federal Government has been accurately compared to the relationship between a city and a State. Dorr v. United, States, 195 U. S. 138, 147-148, quoting T. Cooley, General Principles of Constitutional Law 164-165 (1880); see National Bank v. County of Yankton, 101 U. S. 129, 133.
Cf. Gonzales v. Williams, 192 U. S. 1, 13; American Ins. Co. v. Canter, 1 Pet. 511, 542.
Thus, unless limited by treaty or statute, a tribe has the power to determine tribe membership, Cherokee Intermarriage Cases, 203 U. S. 76; Roff v. Burney, 168 U. S. 218, 222-223; to regulate domestic relations among tribe members, Fisher v. District Court, 424 U. S. 382; cf. United States v. Quiver, 241 U. S. 602; and to prescribe rules for the inheritance of property. Jones v. Meehan, 175 U. S. 1, 29; United States ex rel. Mackey v. Coxe, 18 How. 100.
See infra, at 326.
The first treaty was signed at Canyon de Chelly in 1849, and ratified by Congress in 1850. 9 Stat. 974. The second treaty was signed and ratified in 1868. 15 Stat. 667.
Title 18 U. S. C. § 1152 (1976 ed.) now provides:
“Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to, any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to' the Indian tribes respectively.”
Despite the statute's broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction. United States v. McBratney, 104 U. S. 621.
This statute is not applicable to the present case. The Major Crimes Act, under which the instant prosecution was brought, was enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does not contain any exception for Indians punished under tribal law. We need not decide whether this “ 'carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes' to punish Indians for crimes committed on Indian land,’ ” United States v. Antelope, 430 U. S. 641, 643 n. 1, deprives a tribal court of jurisdiction over the enumerated offenses, since the crimes to which the respondent pleaded guilty in the Navajo Tribal Court are not among those enumerated in the Major Crimes Act. Cf. Oliphant v. Suquamish Indian Tribe, ante, at 203-204, n. 14.
See S. Rep. No. 268, 41st Cong., 3d Sess., 10 (1870):
“Their right of self government, and to administer justice among themselves, after their rude fashion, even to the extent of inflicting the death penalty, has never been questioned; and... the Government has carefully abstained from attempting to regulate their domestic affairs, and from punishing crimes committed by one Indian against another in the Indian country.”
This Court has referred to treaties made with the Indians as “not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” United States v. Winans, 198 U. S. 371, 381.
The tribal courts were established in 1958, and the law-and-order provisions of the Tribal Code in 1959, by resolution of the Navajo Tribal Council. See Titles 7 and 17 of the Navajo Tribal Code; Oliver v. Udall, 113 U. S. App. D. C. 212, 306 F. 2d 819.
Such Courts of Indian Offenses, or “CFR Courts,” still exist on approximately 30 reservations “in which traditional agencies for the
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_usc1
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26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES v. BURDEN, SMITH & CO.
Circuit Court of Appeals, Fifth Circuit.
June 22, 1929.
No. 5523.
William A. Bootle, U. S. Atty., of Maeon, Ga., D. A. Taylor, Sp. Atty., Burean of Int. Rev., of Washington, D. C. (C. M. Charest, Gen. Counsel, Bureau of Int. Rev., of Washington, D. C., on the brief), for the United States.
Geo. S. Jones and C. Baxter Jones, both of Maeon, Ga. (Jones, Jones & Johnston, of Maeon, Ga., and Charles M. Cork, of Maeon, Ga., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
In this case the material facts stipulated by the parties and found by the District Court are these:
May 23, 1919, appellee made return for its 1918 taxes. August 30,1919, the Commissioner of Internal Revenue assessed their 1918 income and excess profits taxes at $48,-882.60. November 1, 1919, appellee filed a claim for abatement of $6,526.98, and January 28, 1920, made claim for a credit of $704.80, overpayment on its 1917 taxes. These two amounts, totaling $7,231.78, were deducted from the payment on account of the 1918 taxes. The claims for abatement and credit were rejected. On August 10, 1925, payment of $7,189.93 principal and $1,-006.59 interest was exacted by duress over appellee’s protest that it was not liable because the claim was barred by the statute of limitations. There was no agreement for a stay or suspension of payment. On these facts the District Court rendered judgment in fa/vor of appellee in the sum of $8,196.52.
Appellant concedes that the collection of the tax when made was barred by the statute of limitation in accordance with the opinion of the Supreme Court in Bowers v. New York & Albany Lighterage Co., 273 U. S. 346, 47 S. Ct. 389, 71 L. Ed. 676, and that prior to the passage of the revenue act of 1928, appellee could ha-ve maintained an action to recover the tax, but asserts that by reason of the provisions of sections 607, 611 of said act (26 USCA §§ 2607, 2611) the District Court erred in rendering judgment for appellee. These sections follow:
“See. 607. Effect of Expiration of Period of Limitation against United States.— Any tax (or any interest, penalty, additional amount, or addition to such tax) assessed or paid (whether before or after the enactment of this Act) after the expiration of the period of limitation properly applicable thereto shall be considered an overpayment and shall be credited or refunded to the taxpayer if claim therefor is filed within the period of limitation for filing such claim.”
“See. 611. Collections Stayed by Claim in Abatement. — If any internal-revenue tax (or any interest, penalty, additional amount, or addition to such tax) was, within the period of limitation properly applicable thereto, assessed prior to June 2, 1924, and if a claim in abatement was filed, with or without bond, and if the collection of any part thereof was stayed, then the payment of such part (made before or within one.year after the enactment of this Act) shall not be considered as an overpayment under the provisions of section 607, relating to payments made after the expiration of the period of limitation on assessment and collection.”
It is admitted that standing alone section 607 is in favor of appellee, but it is argued that section 611 must be given a retroactive effect in the sense that it refers to past transactions; that Congress intended the suspension of the statute of limitations as to every claim for abatement pending for adjustment where the assessment was made any time prior to June 2, 1924; and that to this end Congress used the word “stayed” in section 611 as synonymous with “delayed.” In support of this contention reliance is had on the report of the House Ways and Means Committee, No. 2, of the 70th Congress, First Session, presenting the bill.
It is unnecessary to quote the language of the report. Reports of committees of the House and Senate may be looked to as aids in construing ambiguous or conflicting terms of a statute, but they cannot be taken as giving it a meaning not fairly within its words. St. Louis, Iron Mountain & S. R. Co. v. Craft, 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160.
Taxing statutes are to be interpreted liberally in favor of the taxpayer. Words of the statute are to be given their plain meaning. “Stayed,” in a legal sense, is not interchangeable with “delayed.” It connotes some act on the part of the taxpayer which would morally or legally tie the hands of the Commissioner and prevent collection of the tax. The mere filing of a claim for abatement without more could not possibly have that effect.
That the Treasury Department did not consider that the filing of a claim for abatement operated as a stay or prevented collection of the tax, prior to the adoption of the Act of 1928, is clearly shown by the provisions of article 1032 of regulations 62 of the Treasury Department, whieli is frankly quoted in the brief, as follows: “The filing of a elaim for abatement does not necessarily operate as a suspension of the collection of the tax or make it any less the duty of the collector to exercise due diligence to prevent the collection of the tax being jeopardized. He should, if he considers it necessary, collect the tax and leave the taxpayer to his remedy by a elaim for refund.”
Our attention has been called by appellant to the case of Huntley, Collector, v. H. S. Gile and W. T. Jenks, decided, since this case was submitted, by the Court of Appeals of the Ninth Circuit, May 27, 1929, 32 F.(2d) 857. That ease is not in point, as it was stipulated that collection of the tax had been stayed pending a decision by the Commissioner on a elaim for abatement.
We need not concern ourselves with the questions as to whether the above-quoted sections of the Revenue Act of 1928 have a retroactive effect and are constitutional as applied to this case. Giving them full effect the ease is with appellee. We concur in the conclusion of the District Court.
The record presents no reversible error.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc2
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18
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Edward Lee McLALLEN, Appellant, v. UNITED STATES MARSHAL, WESTERN DISTRICT OF MISSOURI, et al., Appellee.
No. 20256.
United States Court of Appeals, Eighth Circuit.
Jan. 13, 1971.
Ronald M. Sokol, Kansas City, Mo., on brief for appellant.
Bert C. Hum, U. S. Atty., and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., on brief for appellee.
Before MATTHES, Chief Judge, and LAY and BRIGHT, Circuit Judges.
PER CURIAM.
On April 10, 1964, the United States, pursuant to 18 U.S.C. § 4163, mandatorily released Edward Lee McLallen from the Leavenworth Penitentiary with 445 days remaining on his sentence for a Dyer Act violation. Under the statute, such a mandatorily released prisoner acquires the same status as that of a parolee until the expiration of his prison term less 180 days. 18 U.S.C. § 4164. While on such status as a parolee, Mc-Lallen was arrested for second-degree burglary in the State of Missouri. Based on this arrest, the United States Board of Parole issued a warrant directed to any proper United States officer to take McLallen into custody as a parole violator. Upon instructions from the Board of Parole, Respondent United States Marshal, holding the said warrant, withheld its execution, but lodged a detainer with Missouri state officials charged with holding custody of the petitioner.
McLallen filed a petition for habeas corpus in the federal district court for the Western District of Missouri seeking to invalidate the detainer. He contended that the delay in executing the warrant, thereby necessarily delaying disposition of the parole violator claim, violated his constitutional right to due process. The district court construed the petition as one for declaratory relief and dismissed the proceedings, holding that the delay in execution did not strip the warrant of legal validity.
McLallen appeals in forma pauperis from the district court decision. He delineates the issue on appeal in the following language:
On appeal there is no contention that the Board of Paroles may not revoke a mandatory release for commission of a crime while in mandatory release status. Nor is there any contention that statutory good time may not be revoked for violation of mandatory release. Nor is it contended that the Board of Paroles may not, within its discretion, determine that the remaining federal time is to be served consecutively to the state incarceration. What is contended is that it is arbitrary, unreasonable and a violation of due process of law for the Board of Paroles or some employee or agent thereof to refuse and fail to reach a determination, particularly after request, as to whether there has been a violation; whether there are factors in mitigation; whether the mandatory releasee is still a good “parole risk”; whether the violation, if established, is to be ignored or the releasee rein-carcerated, or whether his incarceration is to be served concurrently with, or consecutive to, his state sentence.
Petitioner’s claims of constitutional deprivation are similar to those asserted by the appellant, and rejected by us, in Chaney v. Ciccone, 427 F.2d 363 (8th Cir. 1970). See also Petition of Castaldi, 428 F.2d 371 (8th Cir. 1970); Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967). In Chaney, supra, we held it a permissible practice for the Board of Parole to lodge a detainer against a parole violator and to delay the execution of a parole violator’s warrant until the conclusion of the state sentence then being served by the alleged violator. We consider this court’s decision in Chaney, supra, as dispositive of this case.
Affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1sect
|
1361
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
SAVE THE DUNES COUNCIL et al., Appellants, v. Clifford L. ALEXANDER, Secretary of the Army, Appellee.
No. 77-1760.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 19, 1978.
Decided Aug. 21, 1978.
Marshall Patner, Chicago, Ill., for appellants.
Anne S. Almy, Asst. U. S. Atty., Department of Justice, Washington, D. C., for appellee.
Before PELL and TONE, Circuit Judges, and EAST, Senior District Judge.
Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.
EAST, Senior District Judge.
The Appeal:
The appellants Save the Dunes Council, Inc. and several individuals (Council) appeal the adverse summary judgment entered by the District Court on May 10, 1977 in their causes for a Writ of Mandamus and a Declaratory Judgment with mandatory injunc-tive relief from the action or non-action of the Secretary of the Army (Secretary) under 33 U.S.C. § 426i (prevention or mitigation of shore damage). We note jurisdiction under 28 U.S.C. § 1291 and affirm.
Proceedings in the District Court:
On August 7, 1973, the Council brought suit to compel the Secretary, and through him, the Chief of the Corps of Engineers (Corps) to take remedial action concerning the Corps’ harbor improvements at Michigan City, Indiana. The Council’s complaint in Count I alleged that the Secretary and the Corps had the duty to prevent and rectify shore erosion damage to the Indiana Dunes National Lakeshore (Dunes) allegedly caused by the harbor structures at Michigan City and that the Council was entitled to a Writ of Mandamus, pursuant to 28 U.S.C. § 1361, to compel the Secretary to modify the harbor structures in prevention of unreasonable shore erosion.
In Count II of the complaint, the Council alleged that the harbor improvements constituted a nuisance under federal common law and that the Secretary abused his discretion, granted under various Acts of Congress, by failing to stop or alleviate the shore erosion of the Dunes caused by the harbor structures. They further alleged that the District Court held jurisdiction to abate the nuisance under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 and 706(1), as well as under federal question jurisdiction, 28 U.S.C. § 1331.
On November 2,1973, the Corps moved to dismiss, or in the alternative, for summary judgment. On May 10, 1976, the District Court granted the Corps’ motion for summary judgment under the provisions of Ped.R.Civ.P. 56 and entered judgment for the Corps on the Council’s Count I. The District Court did not deal with the issues under Count II any further than to find:
“[T]he Secretary is currently considering the serious problem of erosion along the [shoreline of the Dunes] in a manner well within the parameters of Title 33.
“[T]he Secretary has properly exercised his discretion by adopting a position with respect to the matter expressed in [Council’s] complaint. Since the court is without jurisdiction to order a course of action more favorable to [Council], this cause must be dismissed.”
Facts:
Michigan City Harbor is located at the mouth of Trail Creek at Lake Michigan, to the east of the Dunes. Development of the Michigan City Harbor (Harbor) began in 1836. Modified several times during the Nineteenth Century, the harbor structures as they now exist were completed about 1910. The structures were rehabilitated in the late 1960’s, without modifications. The Harbor has become a major recreational boating center for the southeastern portion of Lake Michigan.
The shoreline to the east of the Harbor experienced accretion in the period 1870-1940. A Michigan City municipal park, containing a public beach and zoo, is located on the accreted area, immediately to the east of the Harbor. The shoreline to the west of the harbor structures, however, has receded over the years. The erosion above referred to in rather extreme proportion extended into the Dunes through the development of the record before us.
The Dunes was created in 1966 under 16 U.S.C. §§ 460u, et seq., “to preserve for the educational, inspirational, and recreational use of the public certain portions of the Indiana dunes and other areas of scenic, scientific, and historic interest and recreational value in the State of Indiana .
In 1970, the Town of Beverly Shores, Indiana, located within the Dunes, and the Port Authority of Michigan City requested the Corps to study and take remedial action concerning the erosion experienced along the Dunes pursuant to Section 111 of the Rivers and Harbors Act of 1968, 33 U.S.C. § 426i. The Corps undertook a preliminary study of the erosion occurring to the Dunes and the relationship of such erosion to the harbor structures.
The report on this study, called Section 111 Reconnaissance Report, was issued on October 20, 1971. The report concluded that the harbor structures have contributed to approximately 60 percent of the erosion of the Dunes by interfering with the littoral movement of beach building materials to that shore, with high lake levels and steep waves accounting for the remainder. The Reconnaissance Report recommended preparation of a Detailed Project Report to develop plans for mitigation of the shore damage attributable to the harbor structures. The Corps pursued this recommendation and contracted with the engineering firm of Moffatt and Nichol of Long Beach, California, to conduct a study on the Indiana shoreline erosion.
Meanwhile, pursuant to a National Park Service request, the Corps prepared a plan of interim protection for an area where erosion threatened to undermine an access road several miles west of the Harbor. This project consisted of a rock revetment and called for beach nourishment with some 230,000 cubic yards of sand. In 1973, Congress appropriated 3.1 million dollars to the National Park Service for construction of the emergency protection works. The Corps, acting as agent for the Park Service, contracted for the construction of the interim, emergency shore protection works, and construction commenced in the Fall of 1973.
The Corps has, pursuant to resolutions of congressional committees as late as April 11, 1974, issued a final feasibility report, entitled “Interim Report on Indiana Shoreline Erosion,” which recommends authorization of a shore protection project to rebuild the beach west of the Harbor from the Northern Indiana Public Service Company (NIPSCO) property to the existing rock revetment (miles 524 to 526) and to replenish the beach periodically. This plan is designed to mitigate only the erosion caused by harbor structures.
In developing the proposed plan, the Corps considered modification of the harbor structures as an alternative. At the minimum, a detached breakwater and most of the east pier would have to be removed. The Harbor would then lose its function as a harbor of refuge, and increased dredging of the channel would be required. The report states that more extensive removal of improvements would probably be required. The maximum removal plan would result in the loss of a portion of the municipal park to the east of the Harbor and the Harbor outer basin. The NIPSCO power plant, located between the Harbor and the Dunes, would have to be modified.
Construction of the recommended project requires congressional authorization and funding. A draft environmental impact statement for the project has been filed with the Council on Environmental Quality. The report on the recommended project is expected to be submitted to Congress in the next year (1979-80).
Issues:
The issues on review are:
1. Whether the Secretary, acting through the Corps, has any peremptory duty under § 426i to take immediate- structural modification action to remedy the shore erosion on the Dunes when that erosion is primarily caused by federal navigation improvements, and if so, whether that duty may be enforced through mandamus (Count I); and
2. Whether the Secretary’s exercise of discretion is subject to declaratory judgment and mandatory injunctive relief under the APA (Count II).
Discussion:
The Council, as private parties, seeks to compel the Corps, by judicial decree, to remedy a situation causing severe damage to a National Park. No issue is raised as to legal standing of the Council.
It is manifest that the judiciary cannot compel through a writ of mandamus a federal official to perform any function unless the official is clearly directed by law to perform such a duty. This Court has held that mandamus jurisdiction is present only when a clear, plainly defined, and peremptory duty on the federal defendant is shown and there is a lack of an adequate remedy other than mandamus. Vishnevsky v. United States, 581 F.2d 1249 (7th Cir. 1978), citing City of Highland Park v. Train, 519 F.2d 681, 691 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and City of Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976). The peremptory duty must be either a ministerial one or an obligation to act within a specified range of discretion. Davis Associates, Inc. v. Secretary, HUD, 498 F.2d 385, 389 (1st Cir. 1974); Miller v. Ackerman, 488 F.2d 920, 921-22 (8th Cir. 1973). Finally, mandamus jurisdiction does not lie to direct the exercise of administrative discretion within its lawful boundaries. Wilbur v. United States, ex rel. Kadrie, 281 U.S. 206, 218-19, 50 S.Ct. 320, 74 L.Ed. 809 (1930).
Before delving further into the Council’s entitlement to a writ of mandamus, it is first necessary to meet the prerequisite for any writ of mandamus, namely: is there a lack of an adequate remedy for the Council’s grievances other than mandamus? The Council suggests in their Count II such a remedy by way of declaratory and mandatory injunctive relief under the provisions of the APA, §§ 701, et seq. The Council contends that the Corps’ interim protection work (rock revetment and beach nourishment) was miniscule, and its delay by conducting studies and recommending what to do, rather than taking positive action to modify the harbor structures to prevent further erosion, constitutes unreasonable delay and hence an abuse of the Secretary’s discretion authorized under § 426i. The Council relies upon the holding in Secretary of Labor v. Farino, 490 F.2d 885, 888-93 (7th Cir. 1973). In fact, the Council contends that the District Court did not reach and deal with the issues under Count II (review under APA) in its memorandum opinion. We and the Council read the memorandum with different sights. It is true that the memorandum does not deal with the issues under Counts I and II separately in an A, B topical fashion; however, we read the memorandum as an ultimate finding of fact and conclusion of law that the Council has just simply not presented on the record any cause upon which relief can be granted under either Count II or Count I.
The Council has misplaced its trust in Farino under the facts presented here. In Farino, an employer sought APA review of the Secretary’s denial of an Alien Employment Certification so that he could continue to employ an alien. Congress had provided that before the Secretary could issue such an employment certificate, the Secretary must find and certify that the alien’s entry into the labor market would not adversely affect American labor in various particu.lars. Id. at 887. The Secretary denied the Alien Employment Certification and contended that Congress had committed such certification to his discretion and that judicial review was forbidden under § 701(a) which provides in part:
“This chapter applies, . . . except to the extent that—
“. . .; or
“(2) agency action is committed to agency discretion by law.”
Farino recognizes that the Secretary’s decision did not fall within the very narrow exception and held that under the test and standard of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and the “law to apply” (8 U.S.C. § 1182(a)(14)), the Secretary’s decision was subject to judicial review under the provisions of the APA. Farino then adopts the Overton Park standard and procedures for review by the District Court which are:
“[T]he district court is first required to find whether the Secretary acted within the scope of his authority. As mandated by Section 10(e)(2)(A) of the Administrative Procedure Act, supra, his determination must not be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ To make such a finding the district court must consider whether the Secretary’s decision ‘was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ Nevertheless, ‘the ultimate standard of review is a narrow one,’ and the district court may not ‘substitute its judgment for that of the agency.’ 401 U.S. at 415-416, 91 S.Ct. at 823.” 490 F.2d at 889.
There ends Farino’s succor to the Council. Farino puts the Secretary’s decision to that test or standard and does not fault the decision, but only deals with a “procedural issue, viz., whether plaintiffs were afforded an adequate opportunity to be heard before the [Secretary].” Id. at 890. Because of an unclear record, Farino remanded the cause to the District Court for a determination of that issue.
Furthermore, in this case the District Court did review the Secretary’s decision and substantially complied with the Over-ton Park standard and procedure for APA review. It goes without saying that the Council was granted a full due process hearing on its claims before the District Court. The evidence of record was fully considered by the District Court which made the following pertinent findings of fact and conclusions of law:
“[Although the Secretary has authority to perform the acts stated [in § 426i], he is under no obligation to take such action.
“Having determined that the Secretary’s duties are discretionary in nature, the next question is whether the court may compel the performance of such acts. Although district courts are equipped to command discretionary conduct, the federal official remains the ultimate decision-maker. That is, he may decide to take some form of action prescribed by statute, or he may decide to do nothing at all. A court may interfere only when the official’s actions [decision] or inactions [no decision] constitute an abuse of discretion. . . . ”
See Delaware River Joint Toll Bridge Commission v. Resor, 273 F.Supp. 215, 218 (E.D.Pa.1967), citing Paramount Pictures v. Rodney, 186 F.2d 111 (3d Cir. 1951). “The record 3 shows that the Secretary is
“3 Since the court has considered materials outside the pleadings themselves, Rule 56, F.R. C.P., shall govern the disposition of this motion.”
currently considering the serious problem of erosion along the [shoreline of the Dunes] in a manner well within the parameters of Title 33. In 1970, the Town of Beverly Shores, Indiana, and the Port Authority of Michigan City, Indiana, requested the Army Corps of Engineers to study and remedy the erosion dilemma. The following year the Corps prepared a report entitled, ‘Section 111 Reconnaissance Report, Michigan City Harbor, Indiana.’ The report was a preliminary study of the effects of harbor structures on the shorelines of Michigan City and Beverly Shores. The study concluded that ‘[f]urther detailed studies will be required to develop a precise plan of improvement and determine the extent of actual shore damage attributable to the Federal navigation structure.”
We agree. The Secretary, acting through the Corps, rather than taking ill-advised precipitous affirmative action in tearing out the harbor structures, has complied with statutory and administrative requirements for well-advised decision-making.
The provisions of the National Environmental Policy Act, 42 U.S.C. §§ 4331, et seq., (NEPA) require the Corps to “utilize a systematic, interdisciplinary approach . in planning and in decisionmaking . ..” 42 U.S.C. § 4332(2)(A). NEPA further provides for the preparation of an environmental impact statement which, inter alia, includes a discussion of alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii); and in cases involving unresolved conflicts concerning alternate uses of available resources, it mandates study and development of appropriate alternatives. 42 U.S.C. § 4332(2)(E). NEPA, of course, applies to erosion mitigation projects undertaken pursuant to the authority of § 426i. 33 C.F.R. § 209.410(e)(2)(vii).
The Council’s allegations of unwarranted delay on the part of the Secretary are unfounded. The delay was in fact not only warranted but required by the above-mentioned procedures in reaching a decision as whether to demolish or reconstruct the harbor structures. We are satisfied from the record that the Secretary, acting through the Corps, is acting within his discretion without delay and abuse; and that he is proceeding in a reasonable and responsible manner to develop a feasible plan for the prevention of the extreme Lake Michigan water erosion threat to the Dunes. See Chromcraft Corp. v. United States EEOC, 465 F.2d 745, 748 (5th Cir. 1972); and Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 954 (6th Cir. 1971).
Furthermore, the Corps’ action to date is not subject to our review as unreasonably delayed or arbitrary and capricious under § 706(1) and (2)(A). Pursuant to 5 U.S.C. § 704, only final agency actions are subject to judicial review. In 1974, the Corps’ decision-making and planning processes were still ongoing, and as of this date, no recommendation for project authorization has been sent to Congress. The Council’s suggestion that the harbor structures be modified is being considered by the Corps as an alternative remedial measure. Hence, there is no final agency action, in the literal sense, upon which review can be predicated.
Seven-Up Co. v. FTC, 478 F.2d 755 (8th Cir.), cert. denied, 414 U.S. 1013, 94 S.C.t. 379, 38 L.Ed.2d 251 (1973), recognizes exceptions to the finality requirement regarding interim agency actions that violate constitutional immunities or rights and statutory requirements. Manifestly no statutory requirements or constitutional immunities or rights of the Council have been violated by the ongoing action of the Corps in the premises, nor can reasonable delay in a final decision concerning the proper remedy for the erosion be considered a final denial of all relief. Compare Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970).
The Council’s cause under federal common law of nuisance has been abandoned on appeal.
We conclude that the record produced in support of the allegations of Count II present no genuine issues as to any material fact and that the Secretary is entitled to a judgment as a matter of law. The District Court did not err in granting the summary judgment.
We return to the consideration of the Council’s prayer for Writ of Mandamus under the allegations of Count I.
The Council speaks of § 426i with a forked tongue. Under its Count II (APA review), they speak of the statute as authorizing discretionary decisions to the Secretary, while at the same time and citing a series of statutes they contend under their Count I (Mandamus) that the section imposes a peremptory duty and obligation to decide to modify the harbor structures. None of the statutes cited governing the activities of the Corps nor other federal statutes of general applicability creates such a simplistic, peremptory duty. All statutes cited by Council, except § 426i are inapposite to the erosion problem at issue in this litigation. 33 U.S.C. § 540 merely vests continuing jurisdiction over improvements in navigable waters in the Secretary and the Corps. 33 U.S.C. § 577 authorizes an emergency fund for flood protection works. 33 U.S.C. §§ 426, 426e and 426g do authorize the Corps to undertake small shore and beach restoration projects in conjunction with local governments. But these statutes expressly leave the determination of whether to proceed with such projects to the discretion of the Corps.
The House Committee Report states that the purpose of § 426i is to enable the Corps to take remedial action if an existing navigation project creates erosion damage. H.Rept.No.1709, 90th Cong., 2d Sess. 58-59 (1968). The report expressly approves the Corps’ policy of including erosion mitigation measures in plans for new navigation projects, and describes the bill as a measure to extend that policy to existing projects. Thus, the legislative history shows that § 426i was not enacted to limit the Corps’ discretion, but, on the contrary, to permit the Corps to apply its expertise and discretion to the problem of erosion damage caused by existing navigational structures.
Section 426i is applicable to the erosion problem of the Dunes, but Council must bear in mind that the Secretary is limited to the first costs of less than One Million Dollars in any action he may decide to direct in alleviating the erosion problem. The Corps estimates the cost of any reasonably effective erosion prevention course of action at many times that limit. Congress bears the brunt of the problem with well considered expertise and advice of the Corps.
The parties have cited no judicial interpretation or construction of § 426i nor has our independent search found any. We hold that the language of § 426i and the congressional intent in enactment grant and authorize only discretionary decision of action or non-action on the part of the Secretary, acting through the Corps, in the premises. No clear, plainly defined and peremptory duty on the part of the Secretary is spelled out or, by any stretch, to be garnered inf eren tially upon which a Writ of Mandamus to comply can be predicated.
We conclude from the record presented that there are no genuine issues as to any material fact and the Secretary is entitled to a judgment as a matter of law. The District Court did not err in granting the summary judgment on Count I.
The memorandum opinion of the District Court entered on May 10, 1977, granting the Secretary’s motion for summary judgment and the judgment entered thereon are each affirmed.
AFFIRMED.
. 33 U.S.C. § 426i provides:
“The Secretary of the Army, acting through the Chief of Engineers, is authorized to investigate, study, and construct projects for the prevention or mitigation of shore damages attributable to Federal navigation works. The cost of installing, operating, and maintaining such projects shall be borne entirely by the United States. No such project shall be constructed without specific authorization by Congress if the estimated first cost exceeds $1,000,000.” (Emphasis added.)
The term “first cost” is defined as all costs for investigation, design, and construction incurred subsequent to transmittal of a Reconnaissance Report to the Office of the Chief of Engineers for approval. 33 C.F.R. 263.15(b)(1).
. The lengthy delay between submission of the Corps’ motion and decision was apparently occasioned by retirement of the judge originally assigned to the case and reassignment of the case.
. Michigan City Harbor is located at approximately mile 523 on the shoreline; the border of the Dunes is at approximately mile 524, one mile west. The base point for these mile figures is undisclosed. A Northern Indiana Public Service Company installation is located on the intervening land.
. Section 702 in its pertinent part provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. . . . Provided, That any mandatory or injunctive decree shall specify the Federal officer . . . (by name or by title) . .
Section 706 in its pertinent part provides:
“The reviewing court shall—
“(1) compel agency action unlawfully withheld or unreasonably delayed; and
“(2) hold unlawful and set aside agency action, findings and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
“(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;”
. See Holmes v. United States Board of Parole, 541 F.2d 1243, 1247 n.5 (7th Cir. 1976); Lovallo v. Froehike, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973).
. For this reason, the question of whether the Corps’ proposed plan for remedial action is in accordance with Corps’ regulations should be postponed until final action is taken. It should be noted, however, that one of the regulations cited by Council applies to Small Beach Erosion Control Projects, 33 U.S.C. § 426g, and not to § 426i. Projects undertaken pursuant to § 426g involve cost sharing with local governmental units.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
sc_petitioner
|
269
|
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.
NATIONAL LABOR RELATIONS BOARD v. GRANITE STATE JOINT BOARD, TEXTILE WORKERS UNION OF AMERICA, LOCAL 1029, AFL-CIO
No. 71-711.
Argued November 13, 1972
Decided December 7, 1972
Douglas, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 218. Blackmun, J., filed a dissenting opinion, post, p. 218.
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Allan A. Tuttle, and Peter G. Nash.
Harold B. Roitman argued the cause and filed a brief for respondent.
Milton Smith, Jerry Kronenberg, and Gerard C. Smetana filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Plato E. Papps, Louis Poulton, and Bernard Dunau filed a brief for the International Association of Machinists and Aerospace Workers, AFL-CIO, as amicus curiae, urging affirmance.
Mr. Justice Douglas
delivered the opinion of the Court.
Respondent is a union that had a collective-bargaining agreement with an employer which contained a maintenance-of-membership clause providing that members were, as a condition of employment, to remain in good standing “as to payment of dues” for the duration of the contract. Neither the contract nor the Union's constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign. A few days before the collective agreement expired, the Union membership voted to strike if no agreement was reached by a given date. No agreement was reached in the specified period, so the strike and attendant picketing commenced. Shortly thereafter, the Union held a meeting at which the membership resolved that any member aiding or abetting the employer during the strike would be subject to a $2,000 fine.
About six weeks later, two members sent the Union their letters of resignation. Six months or more later, 29 other members resigned. These 31 employees returned to work.
The Union gave them notice that charges had been made against them and that on given dates the Union would hold trials. None of the 31 employees appeared on the dates prescribed; but the trials nonetheless took place even in the absence of the employees and fines were imposed on all. Suits were filed by the Union to collect the fines. But the outcome was not determined because the employees filed unfair labor practice charges with the National Labor Relations Board against the Union.
The unfair labor practice charged was that the Union restrained or coerced the employees “in the exercise of the rights guaranteed in section 7.” See § 8 (b)(1) of the Act. The Board ruled that the Union had violated § 8 (b)(1). 187 N. L. R. B. 636. The Court of Appeals denied enforcement of the Board’s order. 446 F. 2d 369. The case is here on certiorari, 405 U. S. 987.
We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, that a union did not violate §8 (b)(1) by fining members who went to work during a lawful strike authorized by the membership and by suing to collect the fines. The Court reviewed at length in that opinion the legislative history of §§ 7 and 8(b)(1), and concluded by a close majority vote that the disciplinary measures taken by the union against its members on those facts were within the ambit of the union’s control over its internal affairs. But the sanctions allowed were against those who “enjoyed full union membership.” Id., at 196.
Yet when a member lawfully resigns from the union, its power over him ends. We noted in Scofield v. NLRB, 394 U. S. 423, 429, that if a union rule “invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating §8 (b)(1).” On the facts, we held that Scofield) where fines were imposed on members by the union, fell within the ambit of Allis-Ghalmers. But we drew the line between permissible and impermissible union action against members as follows:
. . §8 (b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Id., at 430.
Under § 7 of the Act the employees have “the right to refrain from any or all” concerted activities relating to collective bargaining or mutual aid and protection, as well as the right to join a union and participate in those concerted activities. We have here no problem of construing a union’s constitution or bylaws defining or limiting the circumstances under which a member may resign from the union. We have, therefore, only to apply the law which normally is reflected in our free institutions— the right of the individual to join or to resign from associations, as he sees fit “subject of course to any financial obligations due and owing” the group with which he was associated. Communications Workers v. NLRB, 215 F. 2d 835, 838.
The Scofield case indicates that the power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than- it has over the man in the street.
The Court of Appeals gave weight to the fact that the resigning employees had participated in the vote to strike. We give that factor little weight. The first two members resigned from the Union from one to two months after the strike had begun. The others did so from seven tó 12 months after its commencement. And the strike was still in progress 18 months after its inception. Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely duration of the strike may increase the specter of hardship to his family; the ease with which the employer replaces the strikers may make the strike seem less provident. We do not now decide to what extent the contractual relationship between union and member may curtail the freedom to resign. But where, as here, there are no restraints on the resignation of members, we conclude that the vitality of § 7 requires that the member be free to refrain in November from the actions he endorsed in May and that his § 7 rights are not lost by a union’s plea for solidarity or by its pressures for conformity and submission to its regime.
Reversed.
Fines equivalent to a day’s wages for each day worked during the strike were imposed.
Section 7 provides in relevant part:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities ....’’ 61 Stat. 140, 29 U. S. C. §157.
Section 8 (b). “It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .” 61 Stat. 141, 29 U. S. C. § 158 (b).
Union-security arrangements requiring employees to pay dues, though not requiring membership, have been held not to be an unfair labor practice and therefore not an excuse for the employer to refuse to bargain collectively for such an agreement, at least where state law allows employees that option. NLRB v. General Motors Corp., 373 U. S. 734.
The Union argues that its practice was to accept resignations of members only during an annual ten-day “escape period,” during which time the employees were allowed to revoke their “dues check-off” authorizations. The Court of Appeals rejected that argument, saying there was no evidence that the employees knew of this practice or that they had consented to its limitation on their right to resign. 446 F. 2d 369, 372.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
BOER v. REVESZ et al.
Circuit Court of Appeals, Seventh Circuit.
February 6, 1928.
No. 3860.
1. Banks and banking <®=»188!/2r-Deciaration alleging delivery of money, and defendant’s failure to deposit it in Hungarian bank or deliver passbook, held good on general demurrer.
Declaration alleging that plaintiff, a citizen of Indiana, was induced by defendants, citizens of Illinois, to deliver them named amount of money, which they agreed to deposit to plaintiff’s credit in Hungarian bank and deliver passbook to her therefor, or return money within reasonable time, that defendants failed to make deposit or deliver passbook, and on demand refused to return money, field to state cause of action.
2. Limitation of actions <S^I80(I) — Statute of limitations cannot, under Illinois practice, be raised by general demurrer.
The statute of limitations cannot, under the Illinois practice, be raised by a general demurrer to a declaration.
In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Action by Regina Boer against Albert Revesz and another. Judgment for defendants, and plaintiff brings error.
Reversed and remanded, with directions.
John E. Hughes, of Chicago, Ill., for plaintiff in error.
Lester L. Bauer, of Chicago, Ill., for defendants in error.
Before ALSCHULER, EYANS, and PAGE, Circuit Judges.
PAGE, Circuit Judge.
The only question presented by this writ is whether the District Court for the Northern District of Illinois erred in sustaining a general demurrer to the declaration of plaintiff in error.
The declaration, filed June 1, 1925, alleges, in substance:
That plaintiff, a citizen of Indiana, because of representations made to her by defendants, citizens of Illinois, was induced, on or about January 15, 1917, to deliver to defendants $7,150, for which she received an instrument in writing as follows:
“Chicago, Ill., Jan. 15, 1917.
“Received from Mrs. M. Domoko’s Oden Boer seven thousand and one hundred fifty dollars for (foreign money) kronen 55,000 to be remitted to Magyar Kirahji Postaresidenee Takarekpentztar Budapest.
“Resvesz & Szoeke, per Revesz.”
That defendants agreed they would, within a reasonable time thereafter, deposit to plaintiff’s credit in the Royal Hungarian Post Savings Bank, 55,000 kronen and deliver to her a passbook therefor, and in event they failed within a reasonable time to deliver the passbook they would return, upon request, the $7,150; that defendants did not deposit the 55,000 kronen to her credit, or deliver a passbook to her therefor, and, upon her demand, made January 15, 1919, refused to return the $7,150 or deliver such passbook, thereby breaching their contract, to her damage in the sum of $12,000.
The record does not disclose in what particular the court found the declaration defective, nor do we have the aid of a brief from defendant in error, but counsel for defendant in error, on oral argument in this court, urged that the declaration is defective, because he is unable to tell therefrom whether the plaintiff is relying upon a written undertaking or an oral one, and he therefore did not know what statute of limitations to plead, and that, in any event, it appeared that the statute of limitations had run against the action. Whether the statute of limitations had run is a question which cannot, under the Illinois practice, be raised by a general demurrer. Heimberger v. Elliot Switch Co., 245 Ill. 448, 450, 92 N. E. 297. The statute of limitations is an affirmative defense.
We are of opinion that the declaration, though informal, states a good cause of action, and that the judgment should be, and it is, reversed, and the cause remanded, with direction to overrule the demurrer to the declaration.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Leland K. AUBREY and Charlotte R. Aubrey, Appellants, v. UNITED STATES of America, Appellee.
No. 14157.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 20, 1958.
Decided April 10, 1958.
Mr. Bernard J. Hammett, Washington, D. C., with whom Messrs. W. Byron Sorrell and Cullen B. Jones, Jr., Washington, D. C., were on the brief, for appellants.
Mr. Stanley D. Rose, of the bar of the Supreme Court of Tennessee, pro hae vice, by special leave of Court, with whom Asst. Atty. Gen. George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellee. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.
Before Reed, Associate Justice of the Supreme Court, retired, and PRETTY-MAN and Bazelon, Circuit Judges.
Sitting by designation pursuant to Section 294(a), Title 28 U.S.C., 28 U.S.C.A. § 294(a).
REED, Associate Justice
(sitting by designation).
Leland Aubrey and his wife, Charlotte Aubrey, appeal from the order of the District Court granting summary judgment against them in their suit against the United States under the Tort Claims Act. The principal questions on appeal are (1) whether the workmen’s compensation statute applicable to a civilian employee of a Navy officers’ open mess bars him from suing the United States for injuries suffered in the course of his employment as the result of the negligence of the United States; and (2) whether the injured employee’s wife may maintain a suit against the United States for loss of consortium resulting from the alleged injury.
On October 22, 1954, Leland Aubrey was assistant manager of the Officers’ Mess at the Naval Gun Factory in Washington, D. C. The Officers’ Mess is a nonappropriated fund activity and Aubrey’s salary as an employee of the Mess was paid from the proceeds of the sale of food and beverages. The Mess had agreed to provide catering service for a Navy Relief Ball which was to be held on the evening of October 22, 1954, in a large hall at the Gun Factory. This hall, known as the “Sail Loft,” was owned, maintained and controlled by the Naval Gun Factory and was not a part of the facilities of the Officers’ Mess. On the day of the dance the hall was being waxed by Navy enlisted men acting within the scope of their employment, when Aubrey, in the course of his duties in preparing the catering arrangements, entered the “Sail Loft,” slipped on the newly-waxed floor, fell and broke his ankle.
The Mess, as required by statute, had provided workmen’s compensation insur-anee. Aubrey received from the insurer the sum of $279.00 as payment for medical expenses and further payments totaling $710.00 for disability. Later Aubrey filed this action under the Federal Tort Claims Act, seeking to recover damages from the United States for his injuries and alleging that the injuries were proximately caused by the negligence of the United States and its employees in cleaning and waxing the floor upon which he slipped and fell. His wife, appellant Charlotte Aubrey, joined as plaintiff and sought to recover damages from the United States for loss of consortium.
The record discloses that at the pretrial proceeding in this action, it was stipulated by counsel for plaintiffs and counsel for the United States that “Plaintiff Leland Aubrey was not a Government employee on October 22, 1954.” On appeal, Aubrey argues that even if the compensation is the exclusive remedy against his employer, this does not bar his right to sue the defendant since, according to the stipulation, the Government was not his employer. We hold that the compensation provided by the Officers’ Mess, an instrumentality of the United States, was Aubrey’s exclusive remedy against the United States. By enacting a statutory system of remedies for injuries in the course of employment by these government instrumentalities, Congress has limited the remedy available against the United States by civilian employees of such instrumentalities to workmen’s compensation, the cost of which is borne by the self-supporting in-strumentalities themselves.
By the Act of June 19, 1952, Congress sought to allay certain doubts concerning the status of civilian employees of non-appropriated fund activities under the jurisdiction of the Armed Forces. These doubts had been raised by the holding of the Supreme Court in Standard Oil Co. v. Johnson, 1942, 316 U.S. 481, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611, that Army post exchanges are “arms of the Government” and “integral parts of the War Department” and that they therefore participate in the government’s immunity from state taxation. The Civil Service Commission thought that the effect of this decision was to require that the employees of such instrumentalities be considered federal employees and subject to the general federal personnel laws. The Department of Defense did not view the Johnson case as requiring the inclusion of these employees in the same class as employees of activities operated on appropriated moneys, and sought legislation which would clarify their status. Another purpose of the requested legislation was to require by law what was then the practice of non-appropriated fund activities of providing workmen’s compensation protection for their employees. S.Rep. No. 1341, 82d Cong., 2d Sess. (1952); H.R.Rep. No. 1995, 82d Cong., 2d Sess. (1952); 2 U.S. Code Congressional & Administrative News 1952 p. 1520.
The bill proposed by the Department of Defense was subsequently enacted into law. While specifically preserving the status of the nonappropriated fund activities as federal instrumentalities, the Act provided that employees of such activities shall not be considered employees of the United States for the purpose of laws administered by the Civil Service Commission or the provisions of the Federal Employees Compensation Act (5 U.S.C. § 751, 5 U.S.C.A. § 751), and required nonappropriated fund instrumentalities to provide their employees with compensation for death or disability incurred in the course of employment.
An officers’ mess, like a post exchange, is an integral part of the military establishment. Pursuant to Congressional authorization, 10 U.S.C. § 6011,10 U.S.C.A. § 6011, the Secretary of the Navy has issued regulations governing the organization and operation of naval officers’ messes. U. S. Navy Regulations 1948, Arts. 0441.6, 1841, provide that the administration and operation of officers’ messes shall be under the control and regulation of the Chief of Naval Personnel. The latter has promulgated directives requiring that the messes be organized as integral parts of the Navy and that they be operated under the administration and regulations of the commander or commanding officer of the activity where the mess is located subject to regulations issued by the Chief of Naval Personnel. Bur. of Naval Personnel Man. Arts. C-9501, C-9505. The Bureau of Naval Personnel has also issued detailed instructions concerning every facet of the management of naval officers’ messes. Manual for Commissioned Officers’ Messes Ashore, Navpers 15847, 1955. Similarly detailed instructions govern the accounting methods to be used by the messes. Accounting Systems for Open and Closed Messes Ashore, Navexos P-1032. Cf. Standard Oil Co. v. Johnson, supra, 483-4; Edelstein v. South Post Officers Club, D.C.E.D.Va. 1951, 118 F.Supp. 40; Bleuer v. United States, D.C.E.D.S.C.1950, 117 F.Supp. 509.
The close relationship between such nonappropriated fund instrumentalities as officers’ messes and the military establishment of which they form an arm justifies legislative control of the former by Congress. By § 150k-1, Congress has directly regulated the conduct of these activities to the extent of requiring them to provide workmen’s compensation protection for their civilian employees. The requirement that the instrumentalities themselves provide the protection, by insurance or otherwise, was obviously intended to insure that the cost of such protection would be paid out of the proceeds of these self-supporting activities and not out of public funds.
In Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, the Supreme Court considered the question whether a plaintiff injured while on duty with the armed forces through alleged negligence of the United States could sue under the Tort Claims Act. The court noted that Congress had provided systems of simple, certain, and uniform compensation for injuries or death of those in the armed services, and construed the Tort Claims Act to fit into the entire statutory scheme of remedies against the Government to make a workable, consistent and equitable whole. It held that in view of the compensation system provided, it was not the intent of Congress to allow a serviceman to sue the United States for injuries incident to his duties in the armed forces, although the Tort Claims Act did not expressly withhold his right to sue the United States.
The Supreme Court in Johansen v. United States, 1952, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, applied the same principie in affirming the dismissal of a suit against the United States by a civilian seaman for damages for injuries incurred in his employment aboard a public vessel and caused by the alleged negligence of the United States. The court held that since the seaman was protected by the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq., he could not bring suit against the United States under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. even though again the Compensation Act did not in terms state that it was the exclusive remedy available against the United States for such injuries.
We conclude that Aubrey is precluded from maintaining this suit under the Tort Claims Act by the principle set forth in Feres and Johansen that the Act was not intended to -grant the right to sue the Government to one who has been provided another remedy against its own instrumentality by the Government through a system “of simple, certain, and uniform compensation for injuries or death.” *The compensation system provided for plaintiff Aubrey must, like the Tort Claims Act, “be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.’’ See also Lewis v. United States, 1951, 89 U.S.App.D.C. 21, 190 F.2d 22; Sigmon v. United States, D.C.W.D.Va.1953, 110 F.Supp. 906. We do not think the fact that the insurer is not the United States but a private insurance carrier requires a distinction between this case and Feres or Johansen.
We turn to the right of action of the wife for damages “for loss of the services, support, companionship and consortium” of her husband, allegedly suffered because of defendant’s negligence. This court has held in Hitaffer v. Argonne Co., Inc., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, that the law allows a recovery for such injury. By Smither & Co., Inc. v. Coles, 1957, 100 U.S.App.D.C. 68, 242 F.2d 220, this court reversed the holding in Hitaffer so far as the wife’s right of recovery remained as an individual right, unaffected by the District of Columbia Compensation Act, and held that Mrs. Coles could not recover because liability of the employer provided by the Compensation Act was “exclusive and in place of all other liability of such employer to the * * * wife * * * ” 33 U.S.C. § 905, 33 U.S.C.A. § 905.
In this case the Officers’ Mess, the employer, has met its liability to Aubrey and that arrangement bars the wife’s recovery against the mess under the Smither case. But the present action was predicated on the liability to the Aubreys of the United States as the third party tortfeasor, a liability not covered by the Compensation Act. The Aubreys have brought their cause of action under the provisions of § 33 of the Longhoreman’s Act — the controlling compensation statute in the District of Columbia. Section 33 of the Act, 33 U.S.C. § 933, 33 U.S.C.A. § 933, is the section covering compensation for third party injuries. Since it has been stipulated that the United States is not the employer of Mr. Aubrey, his wife would be entitled to recover for her alleged injury under the Hitaffer case, supra, if negligence for which the United States is responsible is proven.
We think that the allegations of the petition that “through the negligence of the United States and several of its employees * * * in cleaning or waxing the floor of the ‘Sail Loft’ a dangerous condition was created” and appellee’s denial thereof warrants for Mrs. Aubrey a trial for the determination of possible liability.
We think that the contentions of appellant and appellee as to the continued vitality of the Hitaffer case should await the judgment of the trial court as to the liability of the United States under that case.
. 66 Stat. 138 (1952), 5 U.S.C. § 150k-1 (1952), 5 U.S.C.A. § 150k-1; see note 3. The Mess was also an employer and Aubrey an employee within the terms of the District of Columbia Workmen’s Compensation Act. 45 Stat. 600 (1928), § 36-501, D.C.Code (1951), which makes the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424 (1927), 33 U.S.C. §§ 901-950 (1952), 33 U.S.C.A. §§ 901-950, applicable to the District of Columbia.
. 60 Stat. 812, 842 (1946), now 28 U.S.C.A. § 2671 et seq.
. 66 Stat. 138, (1952), 5 U.S.C. §§ 150k, 150k-1, 5 U.S.C.A. §§ 150k, 150k-1; provided in part:
Section 150k: “Civilian employees, compensated from nonappropriated funds, of * * * instrumentalities of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure * * * (etc.) of pereonuel of the Armed Forces, shall not be held and considered as employees of the United States for the purpose of any laws administered by the Civil Service Commission or the provisions of the Federal Employees’ Compensation Act, as amended: Provided, That the status of these nonappropriated fund activities as Federal instrumentalities shall not be affected.”
Section 150k-1: “The nonappropriated fund instrumentalities described in section 150k * * * shall provide their civilian employees, by insurance or otherwise, with compensation for death or disability incurred in the course of employment. * * * (C)ompensation shall be not less than that provided by the laws of the State (or the District of Columbia) in which the employing activity of any such instrumentality is located. * * * ”
. 340 U.S. 144, 71 S.Ct. 158; 343 U.S. 440, 72 S.Ct. 857.
. 840 U.S. 189, 71 S.Ct. 156; 343 U.S. 440, 72 S.Ct. 857.
. See note 1.
. Compare with Hitaffer v. Argonne Co., supra, the annotations thereon, 23 A.L.R.2d 1378, summary § 2; negligence of defendants §§ 6-12 inclusive; American Law Institute, Restatement, Torts § 695, 1954 Supplement § 695; Louis L. Jaffe, Damages for Personal Injury, 18 Law and Contemporary Problems 219, 228-230; Best v. Samuel Fox & Co., Ltd., (1952) A.C. 716, and note on the case in The Modern Law Review, London, vol. 16, p. 92; XXXII Canadian Bar Review, December 1954, p. 1065; 1 U.C.L.A.Law Rev. 223; 55 Mich.L.Rev. 721. See Acuff v. Schmit, Iowa 1956, 78 N.W.2d 480; XIV Washington & Lee L.Rev. 324.
Question: 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:
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songer_casetyp1_2-3-3
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F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
Doris STAMEY, Plaintiff-Appellee, Cross-Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Defendant-Appellant, Cross-Appellee.
No. 87-8494.
United States Court of Appeals, Eleventh Circuit.
Nov. 4, 1988.
Keith W. Koehler, Southern Bell Tel. & Tel. Co., Atlanta, Ga., for defendant-appellant, cross-appellee.
James Lee Ford, Ford & Haley, Atlanta, Ga., for plaintiff-appellee, cross-appellant.
Before HILL and EDMONDSON, Circuit Judges, and WISDOM , Senior Circuit Judge.
Honorable John Minor Wisdom, Senior US Circuit Judge for the Fifth Circuit, sitting by designation.
WISDOM, Senior Circuit Judge:
This case requires this Court to consider once again when an employer’s business justification for terminating an employee is a pretext for age discrimination. Doris Stamey alleges that Southern Bell, her employer for 88 years, had placed older workers in a nonmanagerial job category destined to become obsolete; younger workers doing comparable were given managerial jobs insulated from reductions in the workforce. She sued under the Age Discrimination in Employment Act (ADEA), contending both that Bell had unfairly terminated her and that it had unfairly denied her a promotion into the managerial position. The jury found for Stamey on her termination complaint, but the judge granted a directed verdict on her promotion claim. Bell filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial judge denied Bell’s motion. Bell appeals. Sta-mey cross-appeals the judge’s directed verdict on her promotion claim and part of the remedy. We affirm the judge’s denial of Bell’s motions and reverse as to Stamey’s cross-appeal.
I.
Doris Stamey began her employment with Southern Bell as a long-distance operator in June 1943 when she was eighteen years old. After 10 months she was assigned to a training position, to train long-distance operators on company techniques and equipment. In 1955 Mrs. Stamey was assigned to the position of PBX Operator. In this position she visited customers’ places of business to explain how Southern Bell’s services might best be used by the customer and to instruct the customers on the use of their Private Board Exchanges. This job required both in-depth knowledge of Bell’s services and the ability to adapt Bell’s services to the customer’s workplace. The record indicates that Stamey performed it well; the company assigned her to its best customers.
In 1973, Bell restructured its customer service system. It established two new job titles: “Service Advisor”, a non-management position involving no direct customer contact, and “Chief Service Advisor”, a managerial position supervising the Service Advisors and exclusively in charge of direct customer contact. Almost every PBX Instructor over the age of forty, including Stamey, became a Service Advisor. Sta-mey was then 48. After 1978, Bell gradually phased out Service Advisors by transferring them to other jobs. In 1981, Bell announced it would eliminate the position entirely. Stamey was then 56.
From 1973 until 1981, Stamey requested promotion to the Chief Service Advisor position but she was never promoted or offered the opportunity to train for the promotion. When Bell announced the elimination of the Service Advisor position, it offered Stamey the option of transfer to “any available equal or lower paying job”. The jobs offered included entry-level receptionist, entry-level clerk, and typist.
In June 1981, Stamey filed charges of age discrimination with the EEOC. Several months afterward, Bell announced that it had reassessed its needs and determined that it needed one Service Advisor and that Stamey would be it. Stamey returned to work at Bell. Early on her first day back at work, she completed a form withdrawing her EEOC charges. Bell employees had already filled in the form except for her signature.
Six months later, in December 1982, Bell informed Stamey that it was eliminating her Service Advisor position. It then offered her early retirement or transfer to another job. Bell did not specify what job Stamey might take as an alternative to retirement, although it advised her that whatever job she took would pay less than the Service Advisor position. She was told to consider her options during her month-long holiday that began at the end of 1982.
Stamey never learned what other jobs Bell was willing to offer her. The afternoon before her holiday began, two of her supervisors entered her office and requested that she turn over her keys. During her vacation, but before she had decided to take early retirement, a Bell employee called her at home to ask her to complete her retirement papers. Upon her return at the end of her vacation, but (again) before she had made her decision, she found that her office and work had been assigned to a Chief Service Advisor transferred from another office. Stamey’s supervisors had been aware of the impending arrival of this managerial employee when they took Sta-mey’s keys.
Stamey signed her retirement papers that same month. On the form announcing her decision to retire, she listed her reason for retiring as, “No job offer, replaced by management person from South Carolina”. Six months later, in June 1983, she filed a second complaint with the EEOC, charging that Bell discriminated against her because of her age and that Bell retaliated against her for filing her first complaint with the EEOC. The EEOC gave her a right to sue letter, and she filed this action in December 1983.
The district court directed a verdict for Bell on Stamey’s charge that Bell failed to promote her to Chief Service Advisor because of her age. After a four-day trial, the jury found (1) that Bell’s elimination of Stamey’s Service Advisor position was a “constructive discharge”; (2) that Stamey was constructively discharged in retaliation for her filing of a complaint with the EEOC; (3) that Stamey was constructively discharged because of her age; and (4) that Bell was guilty of pay discrimination because the disparity in benefits between Service Advisor and Chief Service Advisor was determined by age rather than by any difference in work performed.
The district court entered judgment for Stamey accordingly. As part of her relief, the district court ordered that Stamey receive a nondiscriminatory salary from Bell until it reinstated her in a nonmanagement position comparable to the (now defunct) Service Advisor job. Bell then offered Sta-mey a nonmanagement job with the same pay as a Chief Service Advisor. She refused it, asking for a management position. The district court found her refusal “unreasonable” and terminated her right to the continuation of her salary.
Bell appeals the denial of its motion for judgment notwithstanding the verdict and a new trial, contending that there was a business justification for the restructuring and that Stamey was not qualified to be a Chief Service Advisor. Stamey cross-appeals, contending (1) that the district court should not have granted the directed verdict for Bell on the promotion claim; (2) that the district court should have ordered her reinstated as a Chief Service Advisor rather than reinstatement in a nonmanag-erial position comparable to the (now defunct) Service Advisor job; and (3) that it was not “unreasonable” for her to decline reinstatement in a nonmanagerial job.
II.
This court should approve Bell’s appeal of its motions for judgment notwithstanding the verdict only if Bell has presented evidence on its behalf so compelling that “reasonable men could not arrive at a contrary verdict”. In determining whether Bell has met this standard,
the court should consider all of the evidence—not just that evidence which supports the non-mover’s case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion.
At each step, of course, we defer to the findings of fact reached in the trial court.
As in other cases of employment discrimination, an action under the ADEA is a three-step process. First, the plaintiff must establish a prima facie case. Second, the defendant has the burden of proving that legitimate, nondiscriminatory reasons controlled its decision. Finally, the plaintiff then has the burden of demonstrating that the reasons advanced by the defendant were pretextual.
A. Stamey Presented A Prima Facie Case
A prima facie case under the ADEA contains four requirements: (1) the plaintiff must belong to the “protected group” consisting of employees between the ages of 40 and 64; (2) her status as an employee must be adversely affected; (3) she must be replaced by someone outside the protected group; and (4) she must be qualified for the job denied her. Bell denies that Sta-mey was discharged; that she was replaced; and that she was qualified to work as a Customer Service Advisor. In short, Bell contends that Stamey has failed to establish the second, third, and fourth components of a prima facie case.
1. Stamey Was Adversely Affected
Bell avers that Stamey chose retirement and that, consequently, she was not terminated. Bell’s evidence consists only of several admissions from Stamey that she preferred retirement to the jobs available to her. Stamey counters with ample evidence that she was terminated.
Stamey testified that she found the particular jobs Bell offered her before she filed her first EEOC complaint (entry-level receptionist, entry-level clerk, typist) “humiliating” and “insulting”. The second time Bell tried to eliminate her Service Advisor job, it did not specify the other jobs she might take as an alternative to early retirement; it said only that they would be lower paying jobs. In the light of Bell’s earlier offers, a jury could reasonably conclude that any job it would offer her would be demeaning to one with 38 years of experience in advising customers.
Further, Stamey presented evidence that her supervisor demanded her office keys weeks before she was to make her “choice” about early retirement, that Bell did not eliminate her position as it contends but rather just changed the title, and that her replacement was already “at her desk, doing her work” before she had formally “chosen” to retire. From this evidence, a jury could reasonably conclude that Bell used direct coercion to force Stamey to “choose” retirement.
In any event, Stamey can prevail even if the evidence does not support an inference that she was terminated or constructively discharged. The Act forbids far more than merely discriminatory discharge and hiring practices. It states:
It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunity or otherwise adversely affect his status as an employee, because of such individual’s age
A reasonable jury could conclude that Stanley's treatment came within these terms.
2. Stamey Was Replaced
Stamey presented evidence that upon her return to Bell after her December 1982 vacation, someone else was already “at her desk, doing her work”. Bell responds that the employee Stamey observed was doing different work. A jury could reasonably have concluded that Stamey was replaced. In other parts of her case, she presented evidence establishing that Customer Service Advisors did the same work as nonmanagement Customer Advisors. Further, she testified that she observed the woman in her office doing the work she would have been doing had she not been terminated. Bell produced no counter-evidence.
3. Stamey Was Qualified
Bell next disputes that Stamey has established the final prong of the McDon nell Douglas test. It argues that Stamey was not qualified for promotion to the managerial “Chief Service Advisor” position. A reasonable jury could have concluded otherwise. Stamey presented evidence that she was already doing much of the same work as a “Chief Service Advisor”. Much of Stamey’s “nonmanagerial” work was clerical; one young manager admitted under cross examination that her “managerial” tasks were actually clerical in nature. Stamey proved herself capable of even the less mundane “managerial” chores. For example, one post-reorganization customer praised Stamey for a presentation she made after having had very little time to prepare; Stamey’s supervisor was to have made the presentation but found she could not prepare herself in the short time allowed. These examples fit well into a larger pattern, where the Service Advisors trained the Chief Service Advisors and often advised them on a daily basis. The similarity in qualifications for the jobs may have grown out of one aspect of Bell’s reorganization. The new Chief Service Ad-visors no longer visited customer’s workplaces. Instead, employees of Bell’s customers attended training sessions at Bell, then returned to their workplaces. In this system, the onus of adapting Bell’s services to the customers’ work environments shifted slightly to the trained employees of the customers; it was perhaps inevitable that the new Chief Service Advisors would have less reason to acquaint themselves with the intricacies of Bell’s equipment than had the PBX Instructors who were by then their subordinates. The jury could conclude that Stamey established that the qualifications for the “Chief Service Advis- or” position were not really higher than those for the “Service Advisors”. This, considered with the evidence of general discrimination against older employees, provides a sufficient basis for the jury’s verdict on age and pay discrimination. We therefore hold that Stamey did present a prima facie case that Bell discriminated against her because of her age.
B. Bell Did Not Rebut the Prima Fa-cie Case
Bell next argues that any adverse effect suffered by Stamey derived from legitimate, nondiscriminatory business decisions. Throughout the 1970’s an increasing percentage of its customers turned to systems more sophisticated than the PBX systems familiar to Mrs. Stamey. The 1973 decision to bifurcate its customer service program reflected its anticipation of this trend, Bell avers. As customers switched to newer machines, demand for advice on the older PBX models declined, giving Bell a legitimate, business reason to scale back that portion of its customer service operation. Bell contends that its concerns about changes in the system resulted in the force reduction that prompted Sta-mey’s first EEOC complaint in 1981 and again in 1982, when Bell notified Mrs. Sta-mey that it intended to eliminate her position entirely. In short, Bell argues, Mrs. Stamey was not replaced but was instead caught in a reduction in its workforce.
Bell here focuses myopically on its immediate decision to transfer or demote Mrs. Stamey and leaves in the background the restructuring of its workforce. Mrs. Sta-mey presented uncontroverted evidence that the former PBX Instructors were generally older. All of them became Service Advisors, non-management positions without customer contact. The new Chief Service Advisor positions were filled principally by younger new-hires. Stamey also presented evidence that as the 45 (generally older) Service Advisors were phased out, only five became Chief Service Advisors; all of those promoted were under 40. In fact, according to Stamey’s evidence, since 1963, no nonmanagement employee over 50 in the PBX customer service program had been promoted to management and that, from 1973 to 1978, no nonmanagement employee over the age of 40 was promoted to management.
In response, Bell asserts only vague “business reasons” for the restructuring. In particular, Bell does not respond to Sta-mey’s evidence that in practice, a Chief Service Advisor did not require higher qualifications than a Service Advisor.
Bell’s rebuttal argument can succeed only on a foreshortened horizon. A broader perspective reveals that Bell attempted to present a youthful image to its customers. Mrs. Stamey presented evidence that her inability to win promotion within Bell resulted directly from this earlier reorganization of Bell’s customer service program. One witness testified:
I don’t think she [Stamey] was seriously considered for promotion because she did not fit with the image that they [Bell] were wanting to project of the department at the time ... There was a pattern set in the department whereby some of the older women were never ... seriously considered for promotion.
The effect of Bell’s restructuring violates a central teaching of this Court’s decisions in ADEA cases. An employer may not organize its workforce to expose older employees to reductions while insulating younger employees. In Williams v. General Motors Corporation, Judge Hill correctly noted that an “employee-rotation plan that effectively shifted ‘protected’ workers into jobs likely to bear the brunt of a reduction in force” would signal age discrimination. The strength of Stamey's evidence contrasts with the weakness of statistical evidence in Goldstein, where approximately half of the employees promoted in Goldstein (including Goldstein’s own replacement) were over forty years old. This Court rejected Goldstein’s statistical evidence because it did not establish that the company had started a “youth movement”. Stamey has done so. We therefore conclude that Bell has not met its burden of rebutting Stamey’s prima facie case. Accordingly, we affirm the trial judge’s refusal to grant Bell’s motion on Stamey’s termination claim.
C. Bell Retaliated Against Stamey
Bell also appeals the judge’s refusal to grant its motion as to Stamey’s retaliation claim. It denies any “settlement” of Stamey’s first complaint. Stamey, however, offered evidence from which a jury could conclude that there was such a “settlement” and that Bell reneged on it. Until her 1981 EEOC charge, Bell insisted that the position of Customer Instructor (filled by Stamey and some fifty others) needed to be eliminated. After she filed the charge, however, Bell made a “reassessment” and came to the convenient conclusion that it would continue to need one Customer Instructor and that Stamey should be it. The very day that Stamey returned to her (now unique) job as Customer Instructor, she was presented with EEOC forms, already typed, withdrawing her charges against Bell.
Less than a year later, Bell’s “need” for a lone Customer Instructor evaporated. Bell contends that “this was prompted by the anticipated transfer of business marketing [including PBX service] to American Bell” as part of the AT & T divestiture. Stamey points out that the transfer of these functions did not actually occur until 1984. Whatever triggered the elimination of her job, the direct evidence discussed above strongly suggests that Bell thereafter unceremoniously pushed her into early retirement.
III.
A. The Trial Judge Erred In Ordering A Directed Verdict Against Stamey On Her Claim That Bell Illegally Failed to Promote Her
Stamey can sue only for age discrimination violations occurring within 180 days of the filing of her June 1983 complaint with the EEOC. Accordingly, to present the jury with the question of discriminatory refusal to promote, Stamey must show that she was passed over for promotion to Chief Service Advisor in favor of a younger employee in the 180 days before she filed her June 1983 complaint with the EEOC. The district court directed a verdict for Bell on this issue because Stamey admitted that Bell promoted no one to Chief Service Advisor during this period.
Stamey argues that Bell’s replacement of her with a Chief Service Advisor, younger than Stamey and transferred from another office, should suffice for the 180-day requirement. Bell responds that this Sta-mey’s replacement was already a Chief Service Advisor and thus, was not “promoted”.
The formalism Bell urges in the construction of the 180-day rule runs counter to the remedial scheme of the Act. Sta-mey, a Service Advisor, was replaced with a Chief Service Advisor. This upgrading of her position is plainly a promotion opportunity. It could not be plainer that Stamey was passed over for that opportunity by being terminated. The evidence appears adequate for a jury to find that Bell denied Stamey a promotion to “Chief Service Ad-visor” because of her age.
B. The Trial Judge Erred In Ordered Stamey To Accept A Eon-Managerial Position With Bell
The district court ordered Stamey reinstated in a non-managerial position at a nondiscriminatory salary. Because the jury found Bell guilty of salary discrimination, but (because of the partial directed verdict) did not find Bell guilty of a discriminatory refusal to promote Stamey to Chief Service Advisor, this remedy is consistent with the verdict. We have found, however that the trial judge erred in directing the partial verdict for Bell. Hence, Stamey’s refusal of the reinstatement Bell offered would not be “unreasonable” and her salary should not have been discontinued. We remand this aspect of the case to the district judge to determine whether Sta-mey at this point deserves reinstatement as a Chief Service Advisor or whether monetary damages 'are sufficient.
IV.
We affirm the judgment against Bell but reverse as to Stamey’s cross-appeal. Accordingly, the judgment of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
. 29 U.S.C. § 621 et seq.
. In subsequent reorganizations, "Service Advis- or" was renamed "Customer Instructor" and “Chief Service Advisor” became “Associate Supervisor, Service Advisor Complex”. The duties of the two positions remained about the same.
. Stamey would not have suffered immediate financial loss. Bell guarantees its employees their original salary for up to four years after transfer to a lower-paying job.
. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).
. Id.
. See, e.g., Reynolds v. CLP Corp., 812 F.2d 671, 674-75 (11th Cir.1987).
. Goldstein v. Manhattan Ind. Inc., 758 F.2d 1435, 1443 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985).
. See, e.g., Archambault v. United Computing Systems, Inc., 786 F.2d 1507, 1512 (11th Cir.1986).
. Id.
. This standard for a prima facie case derives from McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). See, e.g., Reynolds, 812 F.2d at 674 (applying McDonnell Douglas in ADEA case).
. Employees may be constructively discharged by a demeaning demotion or transfer. See Williams v. Caterpillar Tractor Co,, 770 F.2d 47 (6th Cir.1985).
.Beil makes much of a distinction between termination and "constructive discharge". Bell argues that Stamey must show she was terminated because she did not plead constructive discharge in her complaint. At oral argument, Bell’s counsel suggested that "constructive discharge” complaints were appropriate when an employee offered "subjective” reasons for finding working conditions so difficult or unpleasant that she felt compelled to resign; "termination”, he said, was appropriate where there were “objective” justifications for the employee’s decision to leave a job. Bell presents neither authority nor reasoning for distinguishing the proof required for constructive discharge from that needed for termination.
A plaintiff alleging constructive discharge must establish that the terms and conditions of employment were so onerous that a reasonable person would feel compelled to resign. See, e.g., Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.1977), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1978). The reasonable person standard injects objectivity into a jury’s deliberations over complaints of constructive discharge, thereby blurring the line between subjective and objective so much as to make Bell’s distinction useless. In addition, we see little reason to deny Mrs. Stamey the fair inference from the evidence that she was constructively discharged simply because she did not plead it. Placing so much weight on the pleadings would run contrary to the broad remedial purposes of the ADEA and to the spirit of the Federal Rules of Civil Procedure. Finally, because the evidence supports an inference that she was terminated, Bell’s argument amounts to nothing more than a squabble over wording.
. 29 U.S.C. Section 623(a) (emphasis added).
. Bell’s argument foreshadows its contention that Stamey was not replaced, but that her position was eliminated as a result of changes in its business. Bell therefore asks this court to regard Mrs. Stamey’s case under the tests applicable to work force reduction. This argument is discussed at greater length in Section IIB.
. See n. 10.
. This does not explain why one group consisted of nonmanagerial employees while employees in the other group were granted managerial status.
. Bell also fails to address the proper argument. It stresses that there was no discrimination by age within the ranks of the Service Advisors. Mrs. Stamey does not contest this conclusion. She argues instead that older workers were excluded from the Chief Service Advis- or category. The proper comparison, then, is not among the Service Advisors but between them and the Chief Service Advisors. See, e.g., Lindsey v. Southwestern Bell Telephone Co., 546 F.2d 1123, 1124 (5th Cir.1977) (ADEA claims require comparison of employees selected for position with those available in the entire employee group).
. 656 F.2d 120 (5th Cir. Unit B 1981).
. 656 F.2d at 130 n. 15. Williams discussed the evidence a plaintiff must present to establish a prima facie case. Its discussion is nonetheless applicable. See also McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir. Unit B 1981) ("[A] pattern of terminating older workers when a reduction in force occurred” allows the inference that an employer’s nondiscriminatory reasons were pretexts for discrimination); cf. McCuen v. Home Insurance Co., 633 F.2d 1150, 1150-51 (5th Cir. Unit B 1981).
. 758 F.2d at 1444.
. Id.
. 29 U.S.C. § 626(d)(1).
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
NBO INDUSTRIES TREADWAY COMPANIES, INC., et al. v. BRUNSWICK CORPORATION, Appellant in Nos. 74-2127, 75-1152, et al. Appeal of PUEBLO BOWL-O-MAT, INC., et al., in No. 74-2128.
Nos. 74-2127, 74-2128 and 75-1152.
United States Court of Appeals, Third Circuit.
Submitted on Briefs April 1, 1975.
Decided Aug. 29, 1975.
Certiorari Granted Feb. 23, 1976.
See 96 S.Ct. 1101.
Bernard G. Segal, Ira P. Tiger, Joseph A. Tate, Sehnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Brunswick Corp., appellant in Nos. 74-2127 and 75-1152 and cross-appellee in No. 74-2128; Miles G. Seeley, Thomas B. McNeill, Mayer, Brown & Platt, Chicago, 111., of counsel.
Law Firm of Malcolm A. Hoffmann, New York City, for appellees in Nos. 74-2127, 75-1152 and for cross-appellants in No. 74-2128; Malcolm A. Hoffmann, Robert W. Biggar, Jr., Bernard Zucker, William B. Sneirson, Robert C. Agee, New York City, of counsel.
Before STALEY, GIBBONS and WEIS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
I. INTRODUCTION
We have before us appeals and cross-appeals from a final judgment entered in a private antitrust case. The following determinations in the district court are being challenged: (1) the finding of a violation of § 7 of the Clayton Act, 15 U.S.C. § 18; (2) the correctness of the trial judge’s calculation of attorney fees and costs; and (3) the propriety of the trial judge’s entry of a divestiture order in a private antitrust case.
The complaint in this complicated litigation was filed on June 14, 1966 by Treadway Companies, Inc. (then known as National Bowl-O-Mat Corp.) and ten wholly-owned subsidiaries through which it operated bowling centers throughout the United States. The plaintiffs charged Brunswick Corporation (Brunswick), a manufacturer and distributor of bowling equipment, with: (1) entering into resale price maintenance contracts in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (First Claim); (2) monopolizing and attempting to monopolize the business of operating bowling centers in various markets in which Treadway operated competing centers, thus violating § 2 of the Sherman Act, 15 U.S.C. § 2 (Second Claim); and (3) acquiring and operating bowling centers in the Poughkeepsie, New York, Pueblo, Colorado, and Paramus, New Jersey market areas which had the effect of substantially lessening competition or tending to create a monopoly in violation of § 7 of the Clayton Act, 15 U.S.C. § 18 (Third Claim). During a pre-trial conference held on March 6, 1973, the Sherman Act § 1 claim was abandoned. The § 2 Sherman Act claim and the § 7 Clayton Act claim went to trial. The jury returned a verdict in Brunswick’s favor on the Sherman Act claim. No appeal has been taken from this determination. However, the jury found in favor of three of the plaintiffs — Pueblo Bowl-O-Mat, Inc., Holiday Bowl-O-Mat, Inc., and Bowl-O-Mat Para-mus Operations — on the § 7 Clayton Act claim. Damages were awarded in the following amounts:
(1) Pueblo Bowl-O-Mat, Inc., Pueblo, Colorado $ 964,830
(2) Holiday Bowl-O-Mat, Inc., Poughkeepsie, New York $ 298,800
(3) Bowl-O-Mat Paramus Operations, Paramus, New Jersey $1,094,400
Pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15, the district court trebled each of these awards, and on May 31, 1973 entered judgment on the damage claims for $7,074,090. As a result of Brunswick’s post-trial motions, which were in all other respects denied, the district court granted a new trial as to Pueblo Bowl-O-Mat, Inc., unless Pueblo consented to a remittitur of $499,050. Treadway Cos., Inc. v. Brunswick Corp., 364 F.Supp. 316, 326 (D.N.J.1973) (deeision on post-trial motions). Pueblo did consent, and on October 5, 1973 an order was entered reducing Pueblo’s treble damage recovery to $2,395,440. Thus the total damage award was $6,575,040. The district court also considered plaintiffs’ application for an award of costs and attorney fees. On April 2, 1974 judgment was entered in the district court awarding $428,468 as attorney fees, and $18,509.32 as costs. On September 24, 1974, after the appeals both by plaintiffs and Brunswick from this award were dismissed by this court, the district court entered an order pursuant to Rule 54(b), Fed.R.Civ.P. directing the following: (1) that the May 31, 1973 judgment, and the October 5, 1973 and April 2, 1974 orders, be entered as final; (2) that the entries be made nunc pro tunc as of their original dates for the purpose of fixing the time from which interest at the legal rate would accrue; (3) that the entries be made as of September 24, 1974 for the purpose of taking any appeals. The district court retained jurisdiction over the claim for equitable relief pursuant to § 16 of the Clayton Act, 15 U.S.C. § 26.
Brunswick appeals from the damage award of $6,575,040; from the award of attorney fees and costs; and from the district court’s decision awarding interest from the time of the original judgment and order rather than from the time of the Rule 54(b) certification. Brunswick does not dispute the amount of the award of attorney fees and costs assuming the jury verdict is allowed to stand. It contends, howev.er, that if the verdict is set aside the award of fees and costs must also be set aside. Treadway appeals from the calculation of the fee award contending that it was too low.
On November 15, 1974, the district court filed an opinion, and on January 9, 1975 entered a final judgment, pursuant to § 16 of the Clayton Act, enjoining Brunswick from acquiring any existing bowling centers in the Pueblo, Para-mus and Poughkeepsie/Wappingers Falls areas and ordering divestiture of centers previously acquired in those areas. Brunswick filed an appeal from this judgment. On February 14, 1975 this court entered an order directing that Brunswick’s appeal from the injunction and divestiture judgment (No. 75-1152) be consolidated with Brunswick’s other appeal (No. 74^-2127) and with plaintiffs’ cross-appeal (No. 74-2128).
Brunswick’s contentions, listed below in the order in which they shall be considered, present these questions:
(A) With respect to the jury verdict:
(1) Does the record establish a prima facie violation of § 7 of the Clayton Act by Brunswick?
(2) Are treble damages pursuant to § 4 of the Clayton Act recoverable by litigants in the plaintiffs’ positions solely for a violation of § 7 of the Clayton Act?
(3) Did the court properly instruct the jury as to the elements of a Clayton Act § 7 case?
(4) Was the jury properly instructed on § 4 damages?
(B) With respect to the injunction and divestiture order:
(1) Was there evidence in the record sufficient to support the court’s finding of a Clayton Act § 7 violation?
(2) Does § 16 of the Clayton Act authorize the entry of a divestiture order, at the insistence of a private litigant, to redress a violation of Clayton Act § 7?
Plaintiffs’ main contention on their cross-appeal is that the criteria for fee awards laid down in Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) and reiterated in Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir. 1974), while properly applied by the district court, have no place in fully litigated antitrust actions. Rather, it is argued that these criteria should be applied only in class action settlements.
Virtually all of the issues before us are of first impression in this circuit and many are of first impression nationally. The antitrust questions arise because of the unique interaction among the Clayton Act § 7 which proscribes acquisitions having an effect which “may substantially... lessen competition, or. tend to create a monopoly” and the private remedy provisions of § 4 and § 16 of the same act. A statutory prohibition aimed neither at existing conspiracies nor restraints, nor at existing or attempted monopolizations, but at incipient tendencies, presents problems of private enforcement not frequently encountered. Indeed this is perhaps the first case in which an award of money damages has been made to a private plaintiff for an alleged violation of § 7. Thus the district court was exploring largely virgin antitrust territory. Certain errors were committed in this new territory which warrant a new trial. Reconsideration of the fee award will be required as well.
II. THE INDUSTRY BACKGROUND
Brunswick is one of the two largest manufacturers, distributors and financiers of bowling alley equipment in the United States. Its chief competitor is the American Machine and Foundry Company (AMF), a company about equal in size. Prior to 1964 Brunswick supplied the bowling recreation industry with large quantities of equipment such as lanes and automatic pinsetters. Since this equipment required a substantial capital investment Brunswick also financed the equipment on extended secured credit terms. In the early 1960’s, however, the bowling recreation industry went into a sharp decline. The plaintiffs attribute this decline to overexpansion in the industry. They blame Brunswick for this overexpansion, claiming that it financed too many centers, and in particular, that it saturated certain areas with facilities so as to make competitive success impossible.
Simultaneously with the decline in the industry there occurred a collection problem. Defaults on equipment loans became commonplace. Numerous bowling center proprietors were in such hopeless financial straits that it became clear that there was no reasonable prospect of payment. Exercising its chattel security rights, Brunswick made numerous repossessions, and attempted to dispose of the repossessed equipment at discount prices. Such sales, however, did not keep pace with repossessions. Brunswick’s efforts to lease repossessed lanes to new independent proprietors proved unsuccessful. Over the years Brunswick had borrowed close to $300 million in order to finance the manufacture and sale of bowling equipment. By late 1964 its receivables were in excess of $400 million of which more than $100 million dollars were over 90 days delinquent. Brunswick was clearly in serious financial difficulty.
In an effort to reverse its deteriorating condition, Brunswick’s management decided on a plan. In those cases in which attempts to collect receivables failed, it would repossess the equipment and attempt to sell it in place to third parties. If no sale could be effected Brunswick would then consider operating the failing centers itself if there appeared to be any reasonable prospect that a positive cash flow would result.
In January, 1965 Brunswick formed a Bowling Center Operations Division (BCOD) charged with the responsibility of evaluating centers and operating those which could produce a positive cash flow. This development was disclosed by Brunswick’s president to a meeting of the Bowling Proprietors Association, a retail level trade group, in 1965.
Between 1965 and 1972 BCOD evaluated over 600 defaulting centers for possible operation, commenced operating 222 of these, disposed of 11 to third parties, and closed 43 which proved unable to develop a positive cash flow. The highest number operated by Brunswick at any one time was 169. The largest number of centers taken over by Brunswick for operation in any year was 124 in 1965. Of these, centers in three areas are the subject of this appeal. They are Dutchess Lanes in Poughkeepsie, New York, Belmont Lanes in Pueblo, Colorado, and Fair Lawn Lanes, Interstate Lanes, Ten-Pin-on-the-Mall and Lodi Lanes in or near Paramus, New Jersey.
In each of the local retail market areas a Treadway subsidiary operated a bowling center competing for retail customers with the bowling centers taken over by Brunswick. The parties concede that each of these areas, Poughkeepsie, Pueblo, and Paramus, is a separate retail market for recreational bowling. Tread-way does not manufacture or distribute bowling equipment or supplies.
The method used by Brunswick in taking over the operation of the six centers in issue was not identical. For our purposes, however, we can generalize. The acquisitions in question were by a major manufacturer of bowling equipment and supplies who took over bowling centers by means of stock or asset purchases. These newly-acquired facilities competed horizontally at the retail level with Treadway facilities and were kept in business by Brunswick when they otherwise would have failed.
We can conclude our background survey of the bowling industry by noting that Brunswick now operates the largest number of retail bowling centers in the United States — 167. The next largest retail bowling chain operates only 32 centers, and the rest of the retail market is fragmented among smaller chains and individual operators. It is conceded that the relevant market is local, however, not national. Brunswick’s net assets far exceed the net assets of any other chain of bowling centers and it enjoys those additional advantages which accrue from being the manufacturer of the equipment used in its centers.
III. SUMMARY OF PLAINTIFFS’ § 7 THEORY
This case involves a “deep pocket” manufacturer’s decision to integrate vertically forward into local re;ail markets and to compete with smaller competitors having shallower pockets. The jury verdict in favor of Brunswick on the Sherman Act § 2 claim establishes that this forward integration was not done in an attempt to monopolize the local retail bowling market. Plaintiffs contend, however, that the entry of such a competitor into these markets had the potential for lessening horizontal competition and that such potential lessening of competition suffices to establish a § 7 violation. It is therefore argued that Brunswick’s presence in these markets was illegal, and that plaintiffs suffered damages within the meaning of § 4. These damages were suffered, it is suggested, because in the absence of that illegal presence the acquired centers would have gone out of business thus effectively transferring customers to Treadway’s centers.
IV. WAS A PRIMA FACIE VIOLATION OF § 7 ESTABLISHED?
A. The potential effect on competition.
This case does not present the classic § 7 problem of a merger with, or a purchase of assets from, a competitor on the same competitive level. Nevertheless, Brunswick’s acquisitions had two aspects of possible significance for § 7 purposes. First, Brunswick was a major manufacturer integrating vertically forward into its customer market. Second, it was a giant entering local markets inhabited by pygmies. While both factors may have significance for purposes of § 7, in this case the first factor standing alone is not significant.
A major vice of vertical combinations is market foreclosure to competing manufacturers. See Brown Shoe Co. v. United States, 370 U.S. 294, 323-24, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). But in the bowling industry there is only insubstantial continuous distribution from manufacturer to retailer. The principal products of the manufacturing end of the industry — pinsetters and alleys — are one-shot affairs, and the sales of these products by Brunswick had already taken place long before their reacquisition. It cannot be said, and it has not been shown, that AMF suffered or was likely to suffer any market foreclosure as a result of those reacquisitions. Moreover, Treadway is neither an actual nor a potential competitor at the manufacturing level, and hence is not a potential market foreclosure victim. Thus it probably lacks standing to assert the manufacturer’s market foreclosure issue. In any event, manufacturer’s market foreclosure is not the theory Treadway advances.
The second characteristic of the acquisition, however, is its potential effect on retail level competition. The entry of a giant into a market of pygmies certainly suggests the possibility of a lessening of horizontal retail competition. This is because such a new entrant has greater ease of entry into the market, can accomplish cost-savings by investing in new equipment, can resort to low or below cost sales to sustain itself against competition for a longer period, and can obtain more favorable credit terms. There is evidence from which the jury could have found that several of these factors applied to Brunswick’s acquisitions in the Poughkeepsie, Paramus and Pueblo markets. Treadway urges that this evidence suffices to sustain the verdict that there was a § 7 violation. Brunswick, on the other hand, argues that there must be a showing of actual lessening of competition before the jury can find such a violation. We think, however, that Brunswick’s argument confuses the showing which must be made to sustain recovery under § 4 with that which must be made to show a § 7 violation..
Three § 7 cases suggest that there was sufficient evidence here to go to the jury on the theory that Brunswick’s entry into a local retail market both created the possibility of substantially lessening horizontal retail competition and tended toward the creation of a retail monopoly. Although these cases arose in three different merger contexts, they all involved the potential effect of mergers on horizontal competition.
Brown Shoe Co. v. United States, supra, involved a merger in which a major shoe manufacturer and retailer (Brown) acquired another retailer (Kinney). Thus, the merger had both vertical and horizontal aspects. First, the Court held that the vertical aspect of the merger— Brown’s acquisition of a retailer — had potential market foreclosing effects for competing manufacturers and thus violated § 7. Second, the Court held that the Brown-Kinney combination had a potential for substantially lessening competition at the retail level. This conclusion was reached even though Brown and Kinney, in combination, controlled but a small percentage of the retail shoe market, and even though Brown and Kinney had competed in only a small fraction of the geographic markets before the merger. It is true that since they did compete at retail, at least in a fraction of the geographic markets, the combination fits the classic § 7 pattern of a merger of competitors at the same level. But the significance of Brown Shoe lies less in that fact than in the Court’s analysis of the probable effect of the merger on horizontal retail competition. Brown and Kinney in combination controlled only a small percentage of the retail shoe market. Yet, the Court declined to look at the mere quantitative substantiality of the resulting concentration. Instead it looked at qualitative substantiality. Among the qualitative factors which it mentioned were: (1) the fragmented nature of the retail industry; (2) the ability of a strong national chain to insulate selected outlets from the vagaries of local competition in selected locations; (3) the style leadership of the large chains and its effect on competitors’ inventories; (4) the ability of an integrated manufacturer-retailer to eliminate wholesalers by increasing the volume of its retail purchases from its manufacturing division; and (5) the historical tendency toward concentration in the industry. 370 U.S. at 344-45, 82 S.Ct. 1502. Finally, the court perceived in § 7 a congressional intention to protect small competitors even at the short run expense of consumers. It wrote:
“[EJxpansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the- Act protects. But we cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.” 370 U.S. at 344, 82 S.Ct. at 1534.
Of the major qualitative substantiality factors referred to in Brown Shoe there is evidence in this case tending to show that at least four may have been operative in the retail bowling recreation industry: a fragmented industry, the ability of a strong national chain to insulate itself from competitive vagaries in a local market, Brunswick’s promotional (style) leadership, and, after the debacle of the early 1960’s, the tendency toward concentration. This is not to suggest that the evidence on any such factor was undisputed.
The qualitative substantiality approach of Brown Shoe pointed out rather clearly that although Brown and Kinney were retail competitors this factor was not of crucial significance for purposes of § 7. Many of the factors could result from the vertical integration of a pygmy into a giant in any wholesale or retail market. Shortly after Brown Shoe Chief Justice (then Judge) Burger so read the case. Reynolds Metals Co. v. FTC, 114 U.S.App.D.C. 2, 309 F.2d 223 (1962). There a manufacturer of aluminum, Reynolds, acquired its customer, Arrow, a converter of aluminum into florist foil. The florist foil conversion industry was a line of commerce which consisted of approximately eight competitors who sold to 700 wholesale florist outlets. The District of Columbia Circuit refused to set aside an FTC order requiring divestiture. The court held, on the authority of Brown Shoe, that Arrow’s assimilation into Reynolds’ enormous capital structure and resources gave it an immediate advantage over its competitors. This advantage might have had the effect of substantially lessening competition or might have tended to create a monopoly.
In 1967 the Supreme Court made explicit what had been implicit in Brown Shoe — that a merger or acquisition fell within § 7 even though the acquiring corporation and the acquired one were not competitors and even though the transaction did not involve potential market foreclosure of suppliers. In FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967), it affirmed an FTC determination that Procter & Gamble’s acquisition of Clorox Chemical Company in a “product extension” merger violated § 7. Horizontal competition in the household bleach market was threatened, the Court concluded, because Clorox, already a dominant force in that market, would have the benefit of Procter & Gamble’s advertising discounts, retailing distribution network, and deep pocket. New entrants into the bleach market might be discouraged, active competition might be inhibited by fear of retaliation from so strong a force, below cost sales might be financed by Procter & Gamble’s deep pocket.
The marketing of household bleach is, of course, only remotely comparable to the marketing of recreational bowling. But the Court’s analysis in Procter & Gamble shows that Chief Justice Burger’s reading of Brown Shoe was correct. In some industries the acquisition of a competitor by a deep pocket parent can have sufficient potential to harm horizontal competitors so as to violate § 7. There was sufficient evidence of such potential here to submit the case to the jury on the issue of effect on competitors.
B. The “in commerce” requirement.
Section 7 applies when a corporation “engaged in commerce” acquires the stock or assets of “another corporation engaged also in commerce.” At the time this case was tried, the Third Circuit was committed to the proposition that the Clayton Act § 7, like §§ 1 and 2 of the Sherman Act, represented an exercise of Congress’ full powers under the commerce clause. In Transamerica Corp. v. Board of Governors, 206 F.2d 163, 166 (3d Cir.), cert. denied, 346 U.S. 901, 74 S.Ct. 225, 98 L.Ed. 401 (1953), Judge Maris wrote that Congress, in enacting § 7, intended “to exercise its power under the commerce clause of the Constitution to the fullest extent.”
Had the district court been possessed of perfect foresight, it would have foreseen a major development in § 7 law that was just over the horizon. In United States v. American Building Maintenance Industries, 422 U.S. 271, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975), the Supreme Court considered the jurisdictional reach of § 7. It concluded that unlike §§ 1 and 2 of the Sherman Act, § 7 did not encompass the whole of the commerce power. Effectively, Transamerica Corp. v. Board of Governors, supra, had been overruled. The Supreme Court wrote:
“In sum, neither the legislative history nor the remedial purpose of § 7 of the Clayton Act, as amended and re-enacted in 1950, supports an expansion of the scope of § 7 beyond that defined by its express language. Accordingly, we hold that the phrase ‘engaged in commerce’ as used in § 7 of the Clayton Act means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power.” 422 U.S. at 283, 95 S.Ct. at 2157.
Applying this new standard to the record before us is a problem of no little difficulty. In fact, had the district court granted a motion to dismiss at the close of the plaintiffs’ case, on the ground that the new § 7 threshold had not been met, we might have been inclined to affirm that decision. There was, however, some evidence in the record to suggest that at least some of the acquired bowling centers may have made purchases of pins, pinsetter parts and perhaps other supplies, directly from Brunswick, rather than from local distributors. Thus, they arguably were engaged “in the flow of interstate commerce” within the meaning of the new § 7 test. We think it would be unjust, given the intervening change in the law, to find that the evidence presented was insufficient to cross the jurisdictional threshold and thus order that the district court dismiss the case. We think it more appropriate, consistent with the way in which we will ultimately dispose of the case, to have the “in commerce” question relitigated, with the plaintiffs’ being given an opportunity to satisfy the new and more stringent jurisdictional test. See 28 U. S.C. § 2106.
V. DOES § 4 PROVIDE A PRIVATE REMEDY FOR THIS § 7 VIOLATION?
Until the Supreme Court read the first paragraph of § 7 disjunctively in the du Pont eases so that it covered not only the horizontal acquisition of a competitor, but also acquisitions of non-competitors, the possibility of private recovery for a § 7 violation was remote. Du Pont involved a § 7 violation resulting from du Pont’s acquisition of a 23% stock interest in General Motors, a company to which du Pont supplied paint and fabric. Subsequently, minority stockholders of General Motors brought a derivative action against du Pont seeking (1) § 4 damages from du Pont for the § 7 violation found in the government case, (2) damages for violations of §§ 1 and 2 of the Sherman Act, and (3) damages for a breach of a common law fiduciary duty. In an interlocutory decision, the district court held that since § 7 violations involved potential restraints or monopolizations such violations could not support recoveries under § 4 for injuries to business or property. The case proceeded to trial on the Sherman Act and fiduciary duty claims and resulted in a judgment for du Pont. On appeal from this final judgment the Second Circuit reversed the earlier interlocutory holding that a § 7 violation could not be the basis for a § 4 recovery. Gottesman v. General Motors Corp., 414 F.2d 956 (2d Cir. 1969). (Gottesman I). Judge Feinberg’s opinion required, in effect, that the plaintiff show (1) a violation of § 7, (2) an actual injury causally connected to the violation, and (3) damages of a reasonably certain amount flowing from the causally connected injury. The § 7 violation in the du Pont-General Motors case was the potential market foreclosing effect of du Pont’s 23% ownership of a large customer for automotive fabrics and finishes. The great significance of Gottesman I was that it did not hold that only those foreclosed from the General Motors market could recover. General Motors itself, which was not in the fabrics and finishes business, could recover as well. The Second Circuit remanded to the district court for a reconsideration of the evidence in the light of this interpretation of the interaction between § 7 and § 4.
On remand, the district court again held for du Pont. When appealed, the Second Circuit, in an opinion by Judge Maris, affirmed. Gottesman v. General Motors Corp., 436 F.2d 1205 (2d Cir.), cert. denied 403 U.S. 911, 91 S.Ct. 2208, 29 L.Ed.2d 689 (1971) (Gottesman II). It is in this latter opinion that the Second Circuit fully considered the damage issue. Damages were not awarded because General Motors stockholders did not prove that the company paid a higher price to du Pont for fabric and finishes than was charged to other du Pont customers and did not prove that the materials in question could have been purchased on the open market, at lower prices, with equal quality and service. Plaintiffs did not prove, in other words, that General Motors’ business or property had been injured.
Brunswick and Treadway attach diametrically opposed significance to Gottesman I and II. Brunswick’s theory is that there can be a § 4 recovery only if there is an actual foreclosure of competitors or an actual lessening of competition which results in injury.- That approach may work in a situation such as du Pont-General Motors where the § 7 violation depends upon the potential for market foreclosure. A party losing foreclosed sales might then recover lost profits, and the foreclosed customer, such as General Motors, might recover overcharges. But when the § 7 violation depends upon the potential injury to a horizontal competitor at the same level as the acquired company, Brunswick’s approach would virtually preclude recovery by the competitor until he has been driven out of business.
Brunswick also focuses on the “substantially to lessen competition” language of § 7 and urges that no recovery can be had when activity in the marketplace has the effect of preserving a competitor and reducing consumer prices. But to focus on short run beneficial effects on consumer prices is to disregard the disjunctive “or tend to create a monopoly” clause in § 7, and to confuse injury to the public with injury to competitors. The public is not injured while a potential monopolist is vigorously competing to achieve monopoly power, though that injury may come later. Competitors, on the other hand, are injured in their business or property in a short-run period of predatory competition. Brunswick would permit recovery only when there is an injury to competition (such as market foreclosure) and an injury to the competitor.
Treadway’s theory differs from Brunswick’s. It argues that if an acquisition is illegal under § 7 because it has a sufficient potential to injure competition or to tend to create a monopoly, then the mere presence of the violator in the market which in fact produces a causally linked injury to the business or property of the competitor suffices for a § 4 recovery. To require more it urges, is to force a private plaintiff to prove a Sherman Act § 1 or § 2 violation and to eliminate private damage recoveries for § 7 violations. Under Treadway’s theory it can recover the profits on any sales which it lost by virtue of Brunswick’s presence, or any sales which it would have gained in Brunswick’s absence.
Treadway’s interpretation of the interaction between § 7 and § 4 obviously has far-reaching ramifications. Nevertheless we believe it to be more consistent with the purposes of § 7 to hold that illegal presence which causes injury to the business or property of a competitor is compensable under § 4. This is not to say that proof of a § 7 violation will permit every competitor of the acquired company to recover automatically. As can be seen from Gottesman II, the proof of causal connection and of damage still is formidable.
We hold, then, that a horizontal competitor of a company acquired by a deep pocket parent in violation of § 7 can recover damages under § 4 if it shows injury in fact causally related to the violator’s presence in the market, whether or not that injury flows from or results in an actual lessening of competition. In this case there was sufficient evidence to go to the jury on the fact of such injury, although as we indicate hereafter there are difficulties with the manner in which the issue was framed in the court’s charge.
VI. DID THE COURT PROPERLY CHARGE A § 7 VIOLATION?
A. The impact on competition.
In presenting the case to the jury the district court first charged on the Sherman Act § 2 aspects on which, as we pointed out above, there was a verdict for Brunswick. The court then turned to the § 7 count, explaining that there were three elements involved in determining whether Brunswick violated that section: (1) the relevant lines of commerce, (2) the relevant geographic markets, and (3) “the likely anticompetitive effects of the acquisition of bowling centers in the relevant local market.” (4 App. at 2268a). The court then indicated that there were three relevant geographic markets for bowling center operations, and continued:
“You must decide whether the effect of the acquisition of bowling centers by Brunswick may be substantially to lessen competition or tend to create a monopoly in that ‘line of commerce’ and ‘section of the country.’
The determination of this question will establish whether or not this acquisition was a violation of Section 7 of the Clayton Act.
This determination must be made in light of several factors: the primary index of legality is the market share of the acquired and acquiring companies and the extent of concentration in the industry.
An acquisition which produces a firm controlling and undue percentage of the relevant market and resulting in a significant increase in concentration is presumptively unlawful, unless the defendants can overcome this presumption by other evidence to establish the vigor of competition or affirmative justifications in support of the acquisition.
While market shares are not determinative of legality of an acquisition, I instruct you that high market shares and significant increases in concentration may be sufficient in itself to establish a violation of Section 7. Section 7 of the Clayton Act may be violated either by showing a reasonable probability of a substantial lessening of competition in the future or by showing a substantial lessening of competition which has already occurred.” (4 App. at 2269a-70a).
This charge, in the context of the acquisition of retail outlets in relatively small geographic markets, was virtually a directed verdict. Without highlighting other factors, it emphasized the market share held by Brunswick in each of the markets in question, after the acquisitions.
The charge was defective in a number of ways. It did not say, for example, that the jury must consider such factors as the relative financial strength of Brunswick, Treadway, and other competitors. This would have been significant, for although Brunswick was many times larger than Treadway, the latter was still a large public company, and in the bowling recreation industry there are practical limitations on the extent to which capital may be utilized for competitive advantage. Nor did the charge say that the jury must find that Brunswick’s position as an equipment manufacturer or equipment financier gave it any retail market advantage. Certainly if the vertical integration forward had this effect the jury could have found a tendency toward monopolization or the potential for a substantial lessening of competition. The jury also was not asked to take into account the historical tendency in the industry toward concentration or lack of such a tendency.
By emphasizing the quantitative substantiality of the market shares held by Brunswick, to the exclusion of other factors, the court failed to draw the jury’s attention to the indicators of qualitative substantiality referred to in Brown Shoe Co. v. United States, supra, Reynolds Metals Co. v. FTC, supra and FTC v. Procter & Gamble Co., supra. While the quantitative substantiality of the market shares is important in a case involving a merger of horizontal competitors, it is far less important here because Brunswick was not previously in any of the three markets. Brunswick’s entry into the picture did not increase concentration, but only acted as a substitution of competitors.
Treadway would have us overlook the deficiencies in the § 7 charge because extensive “deep pocket” evidence was introduced on the Sherman Act § 2 claim and the jury was instructed as to the relevancy of that evidence to that claim. There are two obstacles here. First, the court in its instructions quite clearly treated the two counts separately, and we must assume that the jury understood as much. Second, because of the verdict in Brunswick’s favor on the Sherman Act § 2 count we cannot speculate as to how the jury evaluated the “deep pocket” evidence.
Because the § 7 charge was inappropriate to the only theory upon which a § 7 violation could in the circumstances of this case be predicated
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_method
|
A
|
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.
Frederick C. LUCIUS and Carliss Jean Lucius, Debtors-Appellants, v. John C. McLEMORE, Trustee-Appellee.
No. 83-5641.
United States Court of Appeals, Sixth Circuit.
Submitted July 19, 1984.
Decided Aug. 23, 1984.
H. Marshall Judd, Cookeville, Tenn., for debtor s-appellants.
John C. McLemore, Nashville, Tenn., for trustee-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.
This case raises the question when a debtor may amend his filed schedules to add to the list of exempted property. We hold that under Rule 110 of the old Federal Rules of Bankruptcy Procedure and Rule 1009 of the new Rules the debtor may amend his list as a matter of course at any time before the close of the case.
The debtors, Frederick C. and Carliss Jean Lucius, filed a voluntary petition in bankruptcy on October 20, 1982. The Luci-uses filed a Schedule B-4, claiming as exempt property clothing, household goods and furnishings, and an income tax refund. The Luciuses also filed statements indicating that they owned two vehicles, a Dodge van and a Buick, and that a bank held a security interest in the Buick.
The creditors’ meeting was held on December 16, 1982. The bank did not participate and, upon inquiry by the trustee, stated that the Luciuses’ obligation had been paid in full previously. The trustee then asked the Luciuses to surrender the two vehicles; counsel responded that the Luci-uses had moved to Minnesota, taking the vehicles with them.
On January 18, 1983, the trustee filed suit against the Luciuses to prevent their discharge in bankruptcy, and to obtain the vehicles; the Luciuses were served with the complaint on February 4, 1983. At a pretrial conference, the trustee conceded that the Luciuses did not move the vehicles with the intent to hinder or delay the trustee’s administration of the estate, but contended that their refusal to surrender the vehicle was producing that effect.
On February 7, 1983, the Luciuses filed a petition with the Bankruptcy Court to amend the schedule of exemptions to add the vehicles. The trustee objected to the proposed amendment as untimely. The bankruptcy judge, as standing master, filed a report recommending that the petition be denied. Although the Luciuses objected to the report, the District Court denied the petition as untimely. This order is now on appeal before this Court.
Rule 110 of the old Federal Rules of Bankruptcy Procedure, in effect when this case was heard, provided, “A voluntary petition, schedule, or statement of affairs may be amended as a matter of course at any time before the case is closed.” The courts in the Middle District of Tennessee have held that Rule 110 was effectively rescinded by its conflict with 11 U.S.C. § 522(Z), which states:
The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.
These courts have reasoned that section 522(Z), by requiring that parties in interest be given time to object to proposed exemptions, limited the time during which exemptions can be claimed as of right to the 15-day period for objections established by former Rule 403. See, e.g., In re Williams, 26 B.R. 741 (Bankr.M.D.Tenn.1982); In re Brewer, 17 B.R. 186 (Bankr.M.D. Tenn.), aff'd, 22 B.R. 983 (M.D.Tenn.1982).
Rule 110 has been adopted without substantive change as Rule 1009 of the (new) Federal Rules of Bankruptcy Procedure, effective August 1, 1983: “A voluntary petition, list, schedule, statement of financial affairs, statement of executory contracts, or Chapter 13 Statement may be amended by the debtor as a matter of course at any time before the case is closed.” This readoption indicates that Congress perceived no inconsistency between this rule and the Bankruptcy Code, including section 522(Z). The Advisory Committee Note to Rule 1009 reaffirms the legislative intent to allow amendment as a matter of course for schedules, including lists of exempt property.
This rule continues the permissive approach adopted by former Bankruptcy Rule 110 to amendments of voluntary petitions and accompanying papers. Notice of any amendment is required to be given to the trustee. This is particularly important with respect to any amendment of the schedule of property affecting the debtor’s claim of exemptions.
(Emphasis added.)
This “permissive approach,” allowing amendment at any time before the case is closed and denying courts discretion to reject amendments, has been endorsed in several circuits. See Shirkey v. Leake, 715 F.2d 859, 863 (4th Cir.1983); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); In re Gershenbaum, 598 F.2d 779 (3d Cir.1979); In re Andermahr, 30 B.R. 532 (Bankr. 9th Cir.1983). Courts may still refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed. See Doan, 672 F.2d at 833. Moreover, under § 522(¿) the proposed exemptions are subject to objection by a party in interest. See, e.g., Andermahr, 30 B.R. at 534; In re Maxwell, 5 B.R. 58 (Bankr.N.D.Ga.1980).
Accordingly, we reverse the order of the District Court denying the debtors’ application to amend their Schedule B-4 and remand for further proceedings.
. Local Rule 15 of the United States Bankruptcy Court for the Middle District of Tennessee, deleted March 1, 1984, implemented Rule 110.
. The bankruptcy judge who originally acted as standing master in this case has recently indicated that he now believes that the precedents of the Middle District of Tennessee rejecting a right to amend under Rule 110, upon which he presumably based his recommendation in this case, no longer have validity. See In re Davis, 38 B.R. 585 (Bankr.M.D.Tenn.1984) (Lundin, J.).
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_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.
NEBRASKA PRESS ASSN. et al. v. STUART, JUDGE, et al.
No. 75-817.
Argued April 19, 1976
Decided June 30, 1976
Burger, C. J., delivered the opinion of the Court, in which White, BlacKMUN, Powell, and Rehnquist, JJl, joined. White, J., post, p. 570, and Powell, J., post, p. 571, filed concurring opinions. BrenNan, J., filed an opinion concurring in the judgment, in which Stewart and Marshall, JJ., joined, post, p. 572. SteveNS, J., filed an opinion concurring in the judgment, post, p. 617.
E. Barrett Prettyman, Jr., argued the cause for petitioners. With him on the briefs were James L. Koley and Stephen T. McGill.
Harold Mosher, Assistant Attorney General of Nebraska, argued the cause for respondent Stuart. With him. on the brief was Paul L. Douglas, Attorney General. Milton R, Larson argued the cause for respondent State of Nebraska. With him on the brief was Erwin N. Gris-wold. Leonard P. Vyhnalek filed a brief for respondent Simants.
Floyd Abrams argued the cause for the National Broadcasting Co. et al. as amici curiae urging reversal. With him on the brief were Eugene R. Scheiman, Cory-don B. Dunham, David H. Marion, Harold E. Kohn, Robert Sack, John B. Summers, William Barnabas Mc-Henry, David Otis Fuller, Jr., Richard M. Schmidt, Jr., Ian Volner, and /. Laurent Scharff.
Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Joel M. Gora, Charles C. Marson, and Joseph Remcho for the American Civil Liberties Union et al.; by Arthur B. Hanson for the American Newspaper Publishers Assn.; by William I. Hark-away for the National Press Club; by Lawrence Speiser for the Reporters Committee for Freedom of the Press Legal Defense and Research Fund; by Don H. Reuben and Lawrence Gunnels for the Tribune Co.; and by Joseph A. Califano, Jr., John G. Kester, Richard M. Cooper, Alan R. Finberg, Robert C. Lobdell, David R. Hardy, Dan Paul, Edgar A. Zingman, and Donald B. Holbrook for the Washington Post Co. et al.
Mb. Chief Justice Burger
delivered the opinion of the Court.
The respondent State District Judge entered an order restraining the petitioners from publishing or broadcasting accounts of confessions or admissions made by the accused or facts “strongly implicative” of the accused in a widely reported murder of six persons. We granted cer-tiorari to decide whether the entry of such an order on the showing made before the state court violated the constitutional guarantee of freedom of the press.
I
On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Neb., a town of about 850 people. Police released the description of a suspect, Erwin Charles Simants, to the reporters who had hastened to the scene of the crime. Simants was arrested and arraigned in Lincoln County Court the following morning, ending a tense night for this small rural community.
The crime immediately attracted widespread news coverage, by local, regional, and national newspapers, radio and television stations. Three days after the crime, the County Attorney and Simants’ attorney joined in asking the County Court to enter a restrictive order relating to “matters that may or may not be publicly reported or disclosed to the public,” because of the “mass coverage by news media” and the “reasonable likelihood of prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial.” The County Court heard oral argument but took no evidence; no attorney for members of the press appeared at this stage. The County Court granted the prosecutor’s motion for a restrictive order and entered it the next day, October 22. The order prohibited everyone in attendance from “releasing] or authoriz [ing] the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced”; the order also required members of the press to observe the Nebraska Bar-Press Guidelines.
Simants’ preliminary hearing was held the same day, open to the public but subject to the order. The County Court bound over the defendant for trial to the State District Court. The charges, as amended to reflect the autopsy findings, were that Simants had committed the murders in the course of a sexual assault.
Petitioners — several press and broadcast associations, publishers, and individual reporters — moved on October 23 for leave to intervene in the District Court, asking that the restrictive order imposed by the County Court be vacated. The District Court conducted a hearing, at which the County Judge testified and newspaper articles about the Simants case were admitted in evidence. The District Judge granted petitioners’ motion to intervene and, on October 27, entered his own restrictive order. The judge found “because of the nature of the crimes charged in the complaint that there is a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.” The order applied only until the jury was impaneled, and specifically prohibited petitioners from reporting five subjects: (1) the existence or contents of a confession Simants had made to law enforcement officers, which had been introduced in open court at arraignment; (2) the fact or nature of statements Simants had made to other persons; (3) the contents of a note he had written the night of the crime; (4) certain aspects of the medical testimony at the preliminary hearing; and (5) the identity of the victims of the alleged sexual assault and the nature of the assault. It also prohibited reporting the exact nature of the restrictive order itself. Like the County Court’s order, this order incorporated the Nebraska Bar-Press Guidelines. Finally, the order set out a plan for attendance, seating, and courthouse traffic control during the trial.
Four days later, on October 31, petitioners asked the District Court to stay its order. At the same time, they applied to the Nebraska Supreme Court for a writ of mandamus, a stay, and an expedited appeal from the order. The State of Nebraska and the defendant Simants intervened in these actions. The Nebraska Supreme Court heard oral argument on November 25, and issued its per curiam opinion December 1. State v. Simants, 194 Neb. 783, 236 N. W. 2d 794 (1975).
The Nebraska Supreme Court balanced the “heavy-presumption against... constitutional validity” that an order restraining publication bears, New York Times Co. v. United States, 403 U. S. 713, 714 (1971), against the importance of the defendant’s right to trial by an impartial jury. Both society and the individual defendant, the court held, had a vital interest in assuring that Simants be tried by an impartial jury. Because of the publicity surrounding the crime, the court determined that this right was in jeopardy. The court noted that Nebraska statutes required the District Court to try Simants within six months of his arrest, and that a change of venue could move the trial only to adjoining counties, which had been subject to essentially the same publicity as Lincoln County. The Nebraska Supreme Court held that “[ujnless the absolutist position of the relators was constitutionally correct, it would appear that the District Court acted properly.” 194 Neb., at 797, 236 N. W. 2d, at 803.
The Nebraska Supreme Court rejected that “absolutist position,” but modified the District Court’s order to accommodate the defendant’s right to a fair trial and the petitioners’ interest in reporting pretrial events. The order as modified prohibited reporting of only three matters: (a) the existence and nature of any confessions or admissions made by the defendant to law enforcement officers, (b) any confessions or admissions made to any third parties, except members of the press, and (c) other facts “strongly implicative” of the accused. The Nebraska Supreme Court did not rely on the Nebraska Bar-Press Guidelines. See n. 1, supra. After construing Nebraska law to permit closure in certain circumstances, the court remanded the case to the District Judge for reconsideration of the issue whether pretrial hearings should be closed to the press and public.
We granted certiorari to address the important issues raised by the District Court order as modified by the Nebraska Supreme Court, but we denied the motion to expedite review or to stay entirely the order of the State District Court pending Simants’ trial. 423 U. S. 1027 (1975). We are informed by the parties that since we granted certiorari, Simants has been convicted of murder and sentenced to death. His appeal is pending in the Nebraska Supreme Court.
II
The order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976. There were no restraints on publication once the jury was selected, and there are now no restrictions on what may be spoken or written about the Simants case. Intervenor Simants argues that for this reason the case is moot.
Our jurisdiction under Art. Ill, § 2, of the Constitution extends only to actual cases and controversies. Indianapolis School Comm’rs v. Jacobs, 420 U. S. 128 (1975); Sosna v. Iowa, 419 U. S. 393, 397-403 (1975). The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).
The controversy between the parties to this case is “capable of repetition” in two senses. First, if Simants’’ conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants’ retrial. Second, the State of Nebraska is a party to this case; the Nebraska Supreme Court’s decision authorizes state prosecutors to seek restrictive orders in appropriate cases. The dispute between the State and the petitioners who cover events throughout the State is thus “capable of repetition.” Yet, if we decline to address the issues in this case on grounds of mootness, the dispute will evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived. See, e. g., Weinstein v. Bradford, 423 U. S. 147 (1975); Sosna v. Iowa, supra; Roe v. Wade, 410 U. S. 113, 125 (1973); Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 178-179 (1968). We therefore conclude that this case is not moot, and proceed to the merits.
Ill
The problems presented by this case are almost as old as the Republic. Neither in the Constitution nor in contemporaneous writings do we find that the conflict between these two important rights was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press. The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights were familiar with the historic episode in which John Adams defended British soldiers charged with homicide for firing into a crowd of Boston demonstrators; they were intimately familiar with the clash of the adversary system and the part that passions of the populace sometimes play in influencing potential jurors. They did not address themselves directly to the situation presented by this case; their chief concern was the need for freedom of expression in the political arena and the dialogue in ideas. But they recognized that there were risks to private rights from an unfettered press. Jefferson, for example, writing from Paris in 1786 concerning press attacks on John Jay, stated:
“In truth it is afflicting that a man who has past his life in serving the public... should yet be liable to have his peace of mind so much disturbed by any individual who shall think proper to arraign him in a newspaper. It is however an evil for which there is no remedy. Our liberty depends on the freedom of the press, and that cannot be limited without being lost....” 9 Papers of Thomas Jefferson 239 (J. Boyd ed. 1954).
See also F. Mott, Jefferson and the Press 21, 38-46 (1943).
The trial of Aaron Burr in 1807 presented Mr. Chief Justice Marshall, presiding as a trial judge, with acute problems in selecting an unbiased jury. Few people in the area of Virginia from which jurors were drawn had not formed some opinions concerning Mr. Burr or the case, from newspaper accounts and heightened discussion both private and public. The Chief Justice conducted a searching voir dire of the two panels eventually called, and rendered a substantial opinion on the purposes of voir dire and the standards to be applied. See 1 Causes Celebres, Trial of Aaron Burr for Treason 404-427, 473-481 (1879); United States v. Burr, 25 F. Cas. 49 (No. 14,692g) (CC Va. 1807). Burr was acquitted, so there was no occasion for appellate review to examine the problem of prejudicial pretrial publicity. Mr. Chief Justice Marshall’s careful voir dire inquiry into the matter of possible bias makes clear that the problem is not a new one.
The speed of communication and the pervasiveness of the modern news media have exacerbated these problems, however, as numerous appeals demonstrate. The trial of Bruno Hauptmann in a small New Jersey community for the abduction and murder of the Charles Lindberghs’ infant child probably was the most widely covered trial up to that time, and the nature of the coverage produced widespread public reaction. Criticism was directed at the “carnival” atmosphere that pervaded the community and the courtroom itself. Responsible leaders of press and the legal profession — including other judges — pointed out that much of this sorry performance could have been controlled by a vigilant trial judge and by other public officers subject to the control of the court. See generally Hudon, Freedom of the Press Versus Fair Trial: The Remedy Lies With the Courts, 1 Val. U. L. Rev. 8, 12-14 (1966); Hallam, Some Object Lessons on Publicity in Criminal Trials, 24 Minn. L. Rev. 453 (1940); Lippmann, The Lindbergh Case in Its Relation to American Newspapers, in Problems of Journalism 15A-156 (1936).
The excesses of press and radio and lack of responsibility of those in authority in the Hauptmann case and others of that era led to efforts to develop voluntary guidelines for courts, lawyers, press, and broadcasters. See generally J. Lofton, Justice and the Press 117-130 (1966). The effort was renewed in 1965 when the American Bar Association embarked on a project to develop standards for all aspects of criminal justice, including guidelines to accommodate the right to a fair trial and the rights of a free press. See Powell, The Right to a Fair Trial, 51 A. B. A. J. 534 (1965). The resulting standards, approved by the Association in 1968, received support from most of the legal profession. American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press (Approved Draft 1968). Other groups have undertaken similar studies. See Report of the Judicial Conference Committee on the Operation of the Jury System, “Free Press-Fair Trial” Issue, 45 F. R. D. 391 (1968); Special Committee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York, Freedom of the Press and Fair Trial (1967). In the wake of these efforts, the cooperation between bar associations and members of the press led to the adoption of voluntary guidelines like Nebraska’s. See n. 1, supra; American Bar Association Legal Advisory Committee on Fair Trial and Free Press, The Rights of Fair Trial and Free Press 1-6 (1969).
In practice, of course, even the most ideal guidelines are subjected to powerful strains when a case such as Simants’ arises, with reporters from many parts of the country on the scene. Reporters from distant places are unlikely to consider themselves bound by local standards. They report to editors outside the area covered by the guidelines, and their editors are likely to be guided only by their own standards. To contemplate how a state court can control acts of a newspaper or broadcaster outside its jurisdiction, even though the newspapers and broadcasts reach the very community from which jurors are to be selected, suggests something of the practical difficulties of managing such guidelines.
The problems presented in this case have a substantial history outside the reported decisions of courts, in the efforts of many responsible people to accommodate the competing interests. We cannot resolve all of them, for it is not the function of this Court to write a code. We look instead to this particular case and the legal context in which it arises.
IV
The Sixth Amendment in terms guarantees “trial, by an impartial jury...” in federal criminal prosecutions. Because “trial by jury in criminal cases is fundamental to the American scheme of justice,” the Due Process Clause of the Fourteenth Amendment guarantees the same right in state criminal prosecutions. Duncan v. Louisiana, 391 U. S. 145, 149 (1968).
“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent’ jurors.... 'A fair trial in a fair tribunal is a basic requirement of due process/ In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne/ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U. S. 717, 722 (1961).
In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right. But when the case is a “sensational” one tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment. The relevant decisions of this Court, even if not dispositive, are instructive by way of background.
In Irvin v. Dowd, supra, for example, the defendant was convicted of murder following intensive and hostile news coverage. The trial judge had granted a defense motion for a change of venue, but only to an adjacent county, which had been exposed to essentially the same news coverage. At trial, 430 persons were called for jury service; 268 were excused because they had fixed opinions as to guilt. Eight of the 12 who served as jurors thought the defendant guilty, but said they could nevertheless render an impartial verdict. On review the Court vacated the conviction and death sentence and remanded to allow a new trial for, “[w]ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion....” 366 U. S., at 728.
Similarly, in Rideau v. Louisiana, 373 U. S. 723 (1963), the Court reversed the conviction of a defendant whose staged, highly emotional confession had been filmed with the cooperation of local police and later broadcast on television for three days while he was awaiting trial, saying “[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id., at 726. And in Estes v. Texas, 381 U. S. 532 (1965), the Court held that the defendant had not been afforded due process where the volume of trial publicity, the judge’s failure to control the proceedings, and the telecast of a hearing and of the trial itself “inherently prevented a sober search for the truth.” Id., at 551. See also Marshall v. United States, 360 U. S. 310 (1959).
In Sheppard v. Maxwell, 384 U. S. 333 (1966), the Court focused sharply on the impact of pretrial publicity and a trial court’s duty to protect the defendant’s constitutional right to a fair trial. With only Mr. Justice Black dissenting, and he without opinion, the Court ordered a new trial for the petitioner, even though the first trial had occurred 12 years before. Beyond doubt the press had shown no responsible concern for the constitutional guarantee of a fair trial; the community from which the jury was drawn had been inundated by publicity hostile to the defendant. But the trial judge “did not fulfill his duty to protect [the defendant] from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.” Id., at 363. The Court noted that “unfair and prejudicial news comment on pending trials has become increasingly prevalent,” id., at 362, and issued a strong warning:
“Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.... Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should he permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable arid worthy of disciplinary measures.” Id., at 362-363 (emphasis added).
Because the trial court had failed to use even minimal efforts to insulate the trial and the jurors from the “deluge of publicity,” id., at 357, the Court vacated the judgment of conviction and a new trial followed, in which the accused was acquitted.
Cases such as these are relatively rare, and we have held in other cases that trials have been fair in spite of widespread publicity. In Stroble v. California, 343 U. S. 181 (1952), for example, the Court affirmed a conviction and death sentence challenged on the ground that pretrial news accounts, including the prosecutor's release of the defendant’s recorded confession, were allegedly so inflammatory as to amount to a denial of due process. The Court disapproved of the prosecutor’s conduct, but noted that the publicity had receded some six weeks before trial, that the defendant had not moved for a change of venue, and that the confession had'been found voluntary and admitted in evidence at trial. The Court also noted the thorough examination of jurors on voir dire and the careful review of the facts by the state courts, and held that petitioner had failed to demonstrate a denial of due process. See also Murphy v. Florida, 421 U. S. 794 (1975); Beck v. Washington, 369 U. S. 541 (1962).
Taken together, these cases demonstrate that pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial. The capacity of the jury eventually impaneled to decide the case fairly is influenced by the tone and extent of the publicity, which is in part, and often in large part, shaped by what attorneys, police, and other officials do to precipitate news coverage. The trial judge has a major responsibility. What the judge says about a case, in or out of the courtroom, is likely to appear in newspapers and broadcasts. More important, the measures a judge takes or fails to take to mitigate the effects of pretrial publicity — the measures described in Sheppard — may well determine whether the defendant receives a trial consistent with the requirements of due process. That this responsibility has not always been properly discharged is apparent from the decisions just reviewed.
The costs of failure to afford a fair trial are high. In the most extreme cases, like Sheppard and Estes, the risk of injustice was avoided when the convictions were reversed. But a reversal means that justice has been delayed for both the defendant and the State; in some cases, because of lapse of time retrial is impossible or further prosecution is gravely handicapped. Moreover, in borderline cases in which the conviction is not reversed, there is some possibility of an injustice unredressed. The “strong measures” outlined in Sheppard v. Maxwell are means by which a trial judge can try to avoid exacting these costs from society or from the accused.
The state trial judge in the case before us acted responsibly, out of a legitimate concern, in an effort topro-tect the defendant's right to a fair trial. What we must decide is not simply whether the Nebraska courts erred in seeing the possibility of real danger to the defendant’s rights, but whether in the circumstances of this case the means employed were foreclosed by another provision of the Constitution.
Y
The First Amendment provides that “Congress shall make no law... abridging the freedom... of the press,” and it is “no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707 (1931). See also Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). The Court has interpreted these guarantees to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary — orders that impose a “previous” or “prior” restraint on speech. None of our decided cases on prior restraint involved restrictive orders entered to protect a defendant’s right to a fair and impartial jury, but the opinions on prior restraint have a common thread relevant to this case.
In Near v. Minnesota ex rel. Olson, supra, the Court held invalid a Minnesota statute providing for the abatement as a public nuisance of any “malicious, scandalous and defamatory newspaper, magazine or other periodical.” Near had published an occasional weekly newspaper described by the County Attorney’s complaint as “largely devoted to malicious, scandalous and defamatory articles” concerning political and other public figures. 283 U. S., at 703. Publication was enjoined pursuant to the statute. Excerpts from Near’s paper, set out in the dissenting opinion of Mr. Justice Butler, show beyond question that one of its principal characteristics was blatant anti-Semitism. See id., at 723, 724-727, n. 1.
Mr. Chief Justice Hughes, writing for the Court, noted that freedom of the press is not an absolute right, and the State may punish its abuses. He observed that the statute was “not aimed at the redress of individual or private wrongs.” Id., at 708, 709. He then focused on the statute:
“[T]he operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter... and unless the owner or publisher is able... to satisfy the judge that the [matter is] true and... published with good motives... his newspaper or periodical is suppressed.... This is of the essence of censorship.” Id., at 713.
The Court relied on Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454, 462 (1907): “[T]he main purpose of [the First Amendment] is ‘to prevent all such previous restraints upon publications as had been practiced by other governments.’ ”
The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971). There the state courts had enjoined the petitioners from picketing or passing out literature of any kind in a specified area. Noting the similarity to Near v. Minnesota, a unanimous Court held:
“Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind’ in a city of 18,000.
“Any prior restraint on expression comes to this Court with a 'heavy presumption’ against its constitutional validity. Carroll v. Princess Anne, 393 U. S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden.... Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” 402 U. S., at 418-420.
More recently in New York Times Co. v. United States, 403 U. S. 713 (1971), the Government sought to enjoin the publication of excerpts from a massive, classified study of this Nation’s involvement in the Vietnam conflict, going back to the end of the Second World War. The dispositive opinion of the Court simply concluded that the Government had not met its heavy burden of showing justification for the prior restraint. Each of the six concurring Justices and the three dissenting Justices expressed his views separately, but “every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional.” Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U. S. 376, 396 (1973) (Burger, C. J., dissenting). The Court’s conclusion in New York Times suggests that the burden on the Government is not reduced by the temporary nature of a restraint; in that case the Government asked for a temporary restraint solely to permit it to study and assess the impact on national security of the lengthy documents at issue.
The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.
A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.
The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events. Truthful reports of public judicial proceedings have been afforded special protection against subsequent punishment. See Cox Broadcasting Corp v. Cohn, 420 U. S. 469, 492-493(1975); see also, Craig v. Harney, 331 U. S. 367, 374 (1947). For the same reasons the protection against prior restraint should have particular force as applied to reporting of criminal proceedings, whether the crime in question is a single isolated act or a pattern of criminal conduct.
“A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U. S., at 350.
The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly — a duty widely acknowledged but not always observed by editors and publishers. It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.
Of course, the order at issue — like the order requested in New York Times — does not prohibit but only postpones publication. Some news can be delayed and most commentary can even more readily be delayed without serious injury, and there often is a self-imposed delay when responsible editors call for verification of information. But such delays are normally slight and they are self-imposed. Delays imposed by governmental authority are a different matter.
“We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we... remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation’s press.” Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 259 (1974) (White, J., concurring).
See also Columbia Broadcasting v. Democratic Comm., 412 U. S. 94 (1973). As a practical matter, moreover, the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.
The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other. In this ease, the petitioners would have us declare the right of an accused subordinate to their right to publish in all circumstances. But if the authors of these guarantees, fully aware of the potential conflicts between them, were unwilling or unable to resolve the issue by assigning to one priority over the other, it is not for us to rewrite the Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it. The history of even wartime suspension of categorical guarantees, such as habeas corpus or the right to trial by civilian courts, see Ex parte Milligan, 4 Wall. 2 (1867), cautions against suspending explicit guarantees.
The Nebraska courts in this case enjoined the publication of certain kinds of information about the Simants case. There are, as we suggested earlier, marked differences in setting
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_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Prentiss M. BROWN, Administrator, Office of Price Administration, Appellant, v. Thomas J. O’CONNOR and Helen H. O’Connor, Appellees.
No. 10723.
Circuit Court of Appeals, Fifth Circuit.
April 14, 1944.
W. B. Harrell, Regional Litigation Atty., of Dallas, Tex., and David London, Chief Appellate Division, O.P.A., of Washington, D. C., for appellant.
Robert M. Vaughan and Jas. D. O’Con-nor, both of Dallas, Tex., for appellees.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
PER CURIAM.
For the reasons given in Brown, Administrator, v. El Paso Iron & Metal Co., 5 Cir., 141 F.2d 938, this day decided, the judgment in this case is affirmed, without prejudice, however, to the right of the appellant to renew his application for injunction upon evidence that the violations complained of are continuing.
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_injunct
|
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 validity of an injunction or the denial of an injunction or a stay of injunction 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".
NATURAL RESOURCES DEFENSE COUNCIL, INC.; Delaware Audubon Society v. TEXACO REFINING AND MARKETING, INC., Appellant.
No. 89-3684.
United States Court of Appeals, Third Circuit.
Argued April 4, 1990.
Decided June 20, 1990.
Richard D. Allen (argued), Palmer L. Whisenant, Morris, Nichols, Arsht & Tun-nell, Wilmington, Del., for appellant.
James F. Simon (argued), Nancy S. Marks, Nora J. Chorover, Natural Resources Defense Council, Inc., New York City, Richard R. Cooch, Cooch and Taylor, Wilmington, Del., for appellees.
Bruce J. Terris, Karen H. Edgecombe, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., for amici curiae Public Interest Research Group of New Jersey, Inc., and Friends of the Earth.
Roger J. Marzulla, Hillary J. Salans, Powell, Goldstein, Frazer & Murphy, Washington, D.C., Ann Powers, Chesapeake Bay Foundation, Inc., Annapolis, Md., for ami-cus curiae Chesapeake Bay Foundation, Inc.
Before HIGGINBOTHAM, Chief Judge, COWEN and NYGAARD, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal arises out of a citizen suit filed by the Natural Resources Defense Council, Inc. and the Delaware Audubon Society (collectively referred to hereafter as “the NRDC”) under § 505 of the Clean Water Act (“the Act”), 33 U.S.C. § 1365 (1982 and Supp. Ill), alleging that Texaco Refining and Marketing, Inc. (“Texaco”) illegally discharged effluent into the Delaware River at its Delaware City refinery. After considering motions for summary judgment by both parties, the district court granted the NRDC’s motion on the issue of liability and issued an order permanently enjoining Texaco from further illegal discharges. Because we find that the district court failed to apply the proper standard in deciding whether to issue an injunction under the Act, we will vacate the district court’s order and remand the case for a new determination as to the appropriateness of injunctive relief.
I.
In order “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized under specific sections of the Act. See generally Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52-53, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). One of these is § 402 which establishes the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342. Under § 402 either the Administrator of the Environmental Protection Agency (“EPA”), or a state which has established its own EPA-approved permit program, may issue a permit allowing effluent discharges in accordance with specified conditions. 33 U.S.C. § 1342(b), (c).
The holder of a state permit is subject to enforcement action by both the EPA and the state for failure to comply with the permit’s conditions. 33 U.S.C. § 1319, 1342(b)(7). In addition, private citizens may bring civil actions against any person alleged to be in violation of a state permit if the federal or state agencies have not acted. 33 U.S.C. § 1365(a)(1). The Act allows the court in a citizen suit to order injunctive relief and/or impose monetary penalties. 33 U.S.C. § 1365(a).
The State of Delaware received its NPDES permit delegation from the EPA on April 1, 1974, and issued a permit to Texaco in 1977 allowing it to discharge limited quantities of 19 categories of industrial waste from its Delaware City refinery into the Delaware River. The permit imposes on Texaco both limitations on the amount of pollutants that can be discharged and monitoring requirements. Specifically, the permit establishes seven monitoring points inside the refinery — referred to as “outfalls” — and specifies the amount of each effluent category — referred to as “parameters” — that can be discharged at that point. Texaco must periodically conduct certain specified tests at each of the outfalls and publicly report the results in monthly Discharge Monitoring Reports (“DMRs”).
As required by the Act, the NRDC notified Texaco in March 1988 that they intended to file a citizen suit against the company for 342 permit violations occurring at the Delaware City refinery between January 1983 and October 1987. Subsequently, on May 17, 1988, the NRDC filed a complaint charging Texaco with 354 violations, including some violations that had occurred since October 1987. The NRDC later dropped 11 alleged violations apparently in response to a statute of limitations argument raised by Texaco.
On December 9, 1989, Texaco filed a motion for partial summary judgment based on several grounds: the court’s lack of subject matter jurisdiction over some of the alleged permit violations occurring pri- or to the filing of the complaint and which were not either ongoing or likely to recur; the claims were moot under the principles of Gwaltney of Smithfield v. Chesapeake Bay Foundation Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987); and that the claims were barred by the applicable statute of limitations. One week later the NRDC filed their own motion for summary judgment on the issue of liability based on the reported parameter exceedances in Texaco’s DMRs. In their motion, the NRDC sought declaratory and injunctive relief, and requested a hearing to determine the appropriate amount of damages. On April 7, 1989, Texaco filed a supplemental motion for summary judgment alleging that a recent ownership transfer of the Delaware City refinery and the issuance of a new NPDES permit to the new owner rendered the NRDC’s claims moot.
The district court denied Texaco’s motion for partial summary judgment reasoning that even if some of the parameter violations alleged by the NRDC were wholly past violations, i.e., not ongoing or likely to recur, the fact that other parameter violations were ongoing at the time the complaint was filed gave the court jurisdiction over all permit violations. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 287 (D.Del.1989). In addition, the court rejected Texaco’s supplemental motion for summary judgment concluding that it could enjoin Texaco from violating the new permit, based on its violations of the old one, at least as to the old parameter limitations which are either incorporated into, or are less strict than, the parameter limitations listed in the new permit. Id. at 289-90. The district court also found that since Texaco is a 50% partner in Star Enterprise, the Act should not be narrowly construed to forbid enforcement against Texaco simply because it is not the currently named permit holder. Id. at 290-91.
The district court granted the NRDC’s motion for summary judgment based on the submitted DMRs. The court rejected Texaco’s argument that the prima facie violations contained in the DMRs were due to sampling errors, system upsets, or statistical outliers. Instead, the court held that as a matter of law the reported parameter exceedances in Texaco’s DMRs were conclusive proof of permit violations and could not be impeached by either a claim of sampling error or that some of the alleged violations were statistical outliers. Id. at 288-89. Moreover, the court found that the upset defense was not incorporated into Texaco’s permit, either expressly or by reference to the relevant sections of the EPA’s regulations, and thus could not be raised by the company. Id. at 289. Thus, the court concluded that Texaco had raised no genuine issue of material fact as to its liability.
Having established that Texaco violated the Act, the court enjoined the company, its officers, agents, servants, employees, and those persons in active concert or participation with Texaco, and who receive actual notice of the court’s order, from violating terms of the new permit which were either carried over from the old permit or were made stricter in the new version. Id. at 292; App. 462-64 (Order). The penalty phase of the case has not yet proceeded to trial.
Texaco now appeals the district court’s order denying both its motion for summary judgment and its supplemental motion for summary judgment. In addition, Texaco appeals the district court’s order granting the NRDC’s motion for summary judgment and the issuance of a permanent injunction against the company. We have jurisdiction over that part of the district court’s order granting injunctive relief pursuant to 28 U.S.C. § 1292(a)(1) (1982).
II.
Texaco argues on appeal that the district court erred by applying the wrong standard in determining whether to grant the NRDC’s request for a permanent injunction. More specifically, Texaco argues that the court failed to apply traditional equitable principles in reaching its decision to enjoin the company, including placing the burden on the NRDC to prove that irreparable harm would ensue if the injunction was not granted. We review a trial court’s grant of a motion for a permanent injunction for an abuse of discretion. International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94 (3d Cir.1987). An abuse of discretion exists where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Id. at 95.
Although somewhat unclear, from our reading of the opinion it does appear that the district court presumed irreparable harm from the mere fact that the Act had been violated:
Finally, [Texaco] contends that even if the Court were empowered to grant in-junctive relief in the present case, such relief would be improper because [the NRDC] have failed to make the necessary showing of imminent irreparable harm. [The NRDC], on the other hand, take the position that traditional equitable principles need not be applied in this case because the [Act] authorizes the Court to enjoin NPDES permit violations on the basis of defendant’s six-year pattern of non-compliance. [The NRDC’s] position has ample support in this Circuit. For example, in United States Postal Service v. Beamish, 466 F.2d 804, 806 (3d Cir.1972), the Third Circuit held that a statute authorizing preliminary in-junctive relief upon a showing of probable cause to believe that the statute is being violated can be considered a substitute for a finding of irreparable harm normally required for a preliminary injunction to issue. See also Gov’t of the Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983). Consequently, based on the enabling language in the Act and the multiple violations contained in [Texaco’s] DMR’s [sic], injunctive relief is appropriate in this case.
Texaco, 719 F.Supp. at 291-92.
We agree with Texaco that the district court abused its discretion in this case by presuming irreparable harm and not explicitly applying the traditional equitable standard in determining whether an injunction was appropriate for remedying Texaco’s violations of the Act. We believe that the United States Supreme Court’s decisions in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), and Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), establish that equitable principles are not displaced by the Act. Furthermore, every circuit court that has interpreted Romero-Barcelo in this context is in accord with our view, as well as numerous district court opinions in this circuit and elsewhere. Finally, we find that the cases relied upon by the district court for its apparently contrary view that an injunction should automatically follow upon a finding of statutory violation are distinguishable from this case.
In Romero-Barcelo, the district court found that the Navy had violated the Act by discharging ordnance into the Atlantic Ocean during training operations without first obtaining an NPDES permit from the EPA. Romero-Barcelo, 456 U.S. at 307-08, 102 S.Ct. at 1800-01. The court declined to enjoin the training operations, however, and simply ordered the Navy to apply for a permit from the Administrator of the EPA. Id. at 310, 102 S.Ct. at 1802. Emphasizing in its opinion the broad discretion a court in equity possesses in deciding appropriate relief, the district court reasoned that the Navy’s activities were not causing any appreciable harm to the environment, while injunctive relief would cause grievous, and perhaps irreparable, harm to the Navy and the general welfare. Id. The Court of Appeals for the First Circuit reversed and directed the district court to enjoin all Naval training activities until the Navy obtained a permit. The Court of Appeals held that the traditional equitable balancing of interests was inappropriate where there was an absolute statutory duty to refrain from any pollutant discharge until the permit procedure is followed. Id. at 310-11, 102 S.Ct. at 1802.
The Supreme Court reversed the Court of Appeals and remanded the case to the appellate court to review the district court’s decision under an abuse of discretion standard. The Court noted that it had “repeatedly held that the basis for injunc-tive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Id. at 312, 102 S.Ct. at 1803. The Court explained that in each case the court must balance the competing claims of injury and must consider the consequences to each party, and the public, of the granting or withholding of the requested relief. Id. Thus, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id. at 313, 102 S.Ct. at 1803.
The Court cautioned that:
Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. As the Court said in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946):
Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.
Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1804 (citations omitted). However, the Court found nothing in the Clean Water Act’s language, structure or legislative history evidencing Congress’ intent to deny courts their traditional equitable discretion. Id. at 316-18, 319, 102 S.Ct. at 1805-06, 1807. The Court of Appeals had erroneously focused on the integrity of the permit process rather than on the integrity of the Nation's water, the real purpose of the Act. Id. at 314, 102 S.Ct. at 1804.
Similarly in Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), the Court of Appeals for the Ninth Circuit found that the Secretary of the Interior had likely failed to comply with provisions of the Alaska National Interest Lands Conservation Act (“ANILCA”) and directed the district court to grant a preliminary injunction preventing certain oil and gas lease activity. Id. at 540-41, 107 S.Ct. at 1401-02. The Ninth Circuit ruled that “injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.” Id. at 541, 107 S.Ct. at 1402.
The Supreme Court again reversed, “see[ing] nothing which distinguishes Romero-Barcelo from the instant case” and finding “no clear indication in [ANIL-CA] that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the [statute].... ” Amoco, 480 U.S. at 544, 107 S.Ct. at 1403. The Court stated:
Like the First Circuit in Romero-Barce-lo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect — preservation of subsistence resources. The District Court’s refusal to issue a preliminary injunction against all exploration activities did not undermine this policy. The District Court ... expressly found that exploration activities would not significantly restrict subsistence uses. The Court of Appeals did not conclude that this factual finding was clearly erroneous .... Instead, the court stated that “irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.” ... This presumption is contrary to traditional equitable principles and has no basis in ANILCA. Moreover, the environment can be fully protected without this presumption.
Id. at 544-45, 107 S.Ct. at 1403-04.
Every Court of Appeals, which has considered the question, has interpreted Romero-Barcelo and Amoco to require a district court to apply the traditional equitable standard before granting an injunction in eases such as this. For example, the Court of Appeals for the Second Circuit, in Town of Huntington v. Marsh, 884 F.2d 648 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990), found that the “teaching of these [Supreme Court] cases seems clear.” Id. at 652. “[I]n the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of statutory violation.” Id. at 651. Thus, the Court of Appeals reversed the district court which had permanently enjoined the Army Corps of Engineers from dumping, or issuing permits to dump, dredged materials at a disposal site because the environmental impact statement filed by the Corps had violated the Ocean Dumping Act and the National Environmental Policy Act. Id. at 649. The Court of Appeals explained that the district court erred in not specifically finding that irreparable damage would ensue if the injunction was not issued:
the district court appears to have ruled that the establishment of a statutory violation, without more, warranted an injunction. The court determined that the public interest “in maintaining the physical, chemical and biological balance at the dumpsite” outweighed the competing private interest, defined as “inconvenience and additional cost to owners of docks and piers,” resulting in a determination that “plaintiffs have established irreparable damage.” No consideration was given, however, to the question whether plaintiff had met its burden to establish some actual or threatened injury to “the physical, chemical and biological balance at the dump site [sic],” as distinguished from the Corps’ conceded failure to generate a proper EIS before its initial designation of [the dumpsite].
Id. at 654. See also Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1155-56, 1157-58 (9th Cir.1988); National Wildlife Fed’n v. Burford, 835 F.2d 305, 318, 323-24 (D.C.Cir.1987); Commonwealth of Mass. v. Watt, 716 F.2d 946, 951-53 (1st Cir.1983). Cf. United States v. Lambert, 695 F.2d 536, 540 (11th Cir.1983) (without citing Romero-Barcelo, the court held that: “Environmental litigation is not exempt from [the] requirement” that the plaintiff must prove “irreparable harm is likely if an injunction is not granted [for a violation of the Act]”). Indeed, district courts both in this circuit, see, e.g., Public Interest Research Group of N.J., Inc. v. CP Chemicals, Inc., 26 E.R.C. 2017 (D.N.J.1987), and in other circuits, see, e.g., Natural Resources Defense Council, Inc. v. Outboard Marine Corp., 692 F.Supp. 801, 821-23 (N.D.Ill.1988), have applied the traditional equitable standard in determining whether to grant preliminary and permanent injunctions for violations of the Act.
The two cases cited by the district court in support of its apparently contrary position are inapposite. In United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), this Court affirmed an injunction by the district court even though the district court had not applied the traditional equitable standard. And, in Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), the NRDC apparently contends — and the district court appears to assume — that this Court reversed the district court’s denial of a preliminary injunction because the district court should not have applied the traditional equitable standard in deciding the question. However, both of these cases are distinguishable from the case sub judi-ce because the statutes under which the injunctions were sought in Beamish and Virgin Islands clearly circumscribed the traditional equitable discretion courts possess in granting injunctive relief. In Beamish, the postal service provision in question provided that: “the United States district court ... shall ... upon a showing of probable cause to believe ... [that 39 U.S.C. § 3005] is being violated, enter a temporary restraining order and preliminary injunction_” Beamish, 466 F.2d at 806 (quoting from 39 U.S.C. § 3007) (emphasis added). Likewise, in Virgin Islands, the statute in question, the Virgin Islands Coastal Zone Management Act of 1978, provided for preliminary injunctive relief upon a “prima facie showing of a violation.” Virgin Islands, 714 F.2d at 284 (quoting from 12 V.I.C. § 913(b)(1)) (emphasis added). In both of these cases, the legislature had effectively intervened through the statute and guided or controlled the exercise of the'courts’ traditional discretion. Thus, both of these statutes are the type that the Supreme Court distinguished from the Clean Water Act in Romero-Barcelo. See Romero-Barcelo, 456 U.S. at 313-14, 102 S.Ct. at 1804-05.
Thus, it is clear to us that a district court may issue a permanent injunction under the Act only after a showing both of irreparable injury and inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest. Amoco, 480 U.S. at 544-47, 107 S.Ct. at 1403-05. From our reading of the district court’s opinion in this case it is far from certain that such issues were considered and decided upon by the court. Rather, the district court — especially in light, of its finding that no violation of the new permit has occurred — appears to have erroneously presumed irreparable harm from the mere fact of statutory violation, thus improperly focusing on the integrity of the permit process rather than the integrity of the Nation’s waters. We will remand the case to the district court, therefore, for a proper determination of whether an injunction should issue. However, we do recognize, and so advise the district court on remand, that in applying the traditional equitable standard: “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco, 480 U.S. at 545, 107 S.Ct. at 1404.
III.
As previously noted, Texaco raises numerous issues on appeal relating to the district court’s denial of its motion for summary judgment, supplemental motion for summary judgment, and the court’s grant of summary judgment to the NRDC. At oral argument, however, Texaco urged this Court not to reach any other issues it has raised if we decided the standard for in-junctive relief issue in its favor. Since we do decide this issue in Texaco’s favor, we believe that no other issue need be reached in order to effectively resolve this interlocutory dispute between the parties. Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1163 (9th Cir.1976).
IV.
In summary, we find that the district court erred in issuing a permanent injunction against Texaco without first applying the traditional equitable standard as to when such an order is appropriate. Thus, we will vacate the portion of the district court’s order enjoining Texaco not to violate its new NPDES permit and remand this case to the district court to apply the proper standard. Each party to bear its own costs.
. In November 1988, Texaco and the Saudi Arabian Oil Company formed a joint venture partnership called Star Enterprise. Star Enterprise acquired ownership of many of Texaco’s assets, including the Delaware City facility. Each partner owns a 50% interest in the joint venture's assets.
. On January 31, 1989, Delaware issued a new permit for the Delaware City refinery naming Star Enterprise as the permittee. This new permit differed from the old permit in several respects, including some changes in permissible effluent limits, the locations of certain outfalls, and the manner in which some effluent discharges are to be calculated. After the competing summary judgments were fully briefed to the district court, the NRDC submitted an additional letter to the court alleging three violations of the new permit and offering DMRs to substantiate the claim. Texaco denied that the DMRs reflected actual permit violations. Believing that this information did not materially affect the parties' positions in the litigation, the district court did not rely on this new information in reaching its decision. Instead, the court specifically found that: ‘‘There have been no reported violations of any of the terms of the reissued permit.” Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 283-84 (D.Del.1989).
.The court noted that Texaco had admitted that some parameter violations were ongoing. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 285 (D.Del.1989).
. Texaco contends that this Court also has jurisdiction over the balance of the district court’s order, i.e., denying both of Texaco’s motions for summary judgment and granting the NRDC’s motion, under the principles of Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982) (in banc). Because of our disposition of this case, we need not decide this question.
. As an example of-legislative intervention, the Court cited TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In that case, the Court held that Congress had foreclosed the traditional discretion exercised by a court in equity:
The statute involved, the Endangered Species Act, 87 Stat. 884, 16 U.S.C. 1531 et seq., required the District Court to enjoin completion of the Tellico Dam in order to preserve the snail darter, a species of perch. The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compelled that conclusion. Section 7 of the Act, 16 U.S.C. § 1536, requires federal agencies to "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of [any] endangered species ... or result in the destruction or modification of habitat of such species which is determined ... to be critical.” The statute thus contains a flat ban on the destruction of critical habitats.
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982). Since it was conceded that the Tellico Dam would destroy the snail darters’ habitat, an injunction had to be issued because "Congress, it appeared to us, had chosen the snail darter over the dam.” Id. at 314, 102 S.Ct. at 1804. Turning to the Clean Water Act, the Court noted: "That is not the case here. An injunction is not the only means of ensuring compliance [with the Act].” Id.
. Moreover, in a different context this Court has cited Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for the proposition that, absent a clear Congressional statement, courts should not infer that Congress intended to alter equity practices. Flynn v. United States By and Through Eggers, 786 F.2d 586, 591 (3d Cir.1986). In Flynn, we were construing § 6213(a) of the Internal Revenue Code which states that a court “may” grant injunctive relief under specified conditions. Id. Combining Congress' use of the conditional with Romero-Barcelo, we held that relief was not mandatory simply because the statutory conditions were met, but instead lies within the discretion of the court. Id. Therefore, we found "no reason to cast off those principles that traditionally have informed the exercise of a court's broad equity powers,” and required the plaintiff to prove inadequacy of a legal remedy to prevent an irreparable injury before an injunction should issue under this statutory provision. Id.
. Whether this Court actually held that the district court should not have applied traditional equitable principles in Government of Virgin Islands, Dep't of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), is not clear. At one point we said that there is no reason for the district court not to apply the same approach as in United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), when ruling on a motion for a preliminary injunction, i.e., “a statutory provision authorizing preliminary injunctive relief upon a showing of probable cause to believe that the statute is being violated may be considered a substitute for a finding of irreparable harm_” Virgin Islands, 714 F.2d at 286. However, we ended the opinion by explaining:
We do not suggest that the district court does not retain discretion as to whether a preliminary injunction should issue. However, such discretion can be prudently exercised only after the relevant factors have been evaluated. In this case, one of the most significant factors to be considered is the public interest which underlies the Air Pollution Control and Coastal Zone Management Acts.
Id. at 286. Thus, the actual import of Virgin Islands is probably that a court may use its equitable discretion in not issuing an injunction even if the statutory standard is satisfied. At any rate, for purposes of this discussion, even if we adopt the view of Virgin Islands most favorable to the district court, we still find the court’s reliance on the case unavailing.
. See also the discussion in note 5 supra.
The NRDC relies on another opinion of this Court for its position that an injunction may issue after a violation of the Act without a determination of the balance of harms. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir.1989). However, this case also gives the NRDC no comfort. First, the discussion in Air Freight as to the proper standard to apply in statutory injunction situations is dictum. And, second, in our view the discussion in Air Freight does not differ materially from our discussion of Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983), and, therefore, does not support the position advanced by the NRDC.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Plaintiff-Appellant, v. DON B. HART EQUITY PURE TRUST, Don B. Hart and Mary Louise Hart, Defendants-Appellees.
No. 86-1614.
United States Court of Appeals, Fifth Circuit.
June 16, 1987.
Nancy M. Koenig, Myrna B. Silen, Attys., Lubbock, Tex., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellant.
Martha A. Miller, Atlanta, Ga., for defendants-appellees.
Before WISDOM, WILLIAMS, and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
In this appeal the Small Business Administration (SBA) contends that the district court erred in granting summary judgment in favor of Don Hart Equity Pure Trust (Hart Trust) on a claim by the SBA for the payment of a deficiency judgment rendered against Hart Trust. We agree with the SBA and therefore reverse the court’s granting of summary judgment in favor of Hart Trust.
I.
The facts in this case were stipulated to by both parties. Don B. Hart and Mary Louise Hart are farmers in Hansford County, Texas. Because of financial difficulties, on August 28, 1978, the Harts, through Hart Trust, sought and obtained a loan from the SBA. Hart Trust executed a promissory note in the amount of $157,400, payable to the SBA. That same day the Harts personally guaranteed the note, with the SBA obtaining a lien and an undivided interest in two properties owned by the Harts.
The loan called for repayment in annual installments of $18,452, due each January 15 from 1979 through 1988. Hart Trust made its first installment payment on January 15, 1979. It could not make the second payment on January 15, 1980, but the SBA agreed to defer the payment until July 15, 1980. When Hart Trust could not make that payment, the 1980 installment was deferred a second and final time until November 15,1980. Hart Trust never paid this or any of the subsequent installments.
After Hart Trust failed to make the second installment payment, the SBA declared the note in default and accelerated the note so that the entire principal became due and payable. On September 7, 1982, the properties securing the note were sold at a foreclosure sale, and the proceeds were applied to Hart Trust’s debt under the note. After the sale, Hart Trust owed an unpaid principal balance of $55,261.64. The SBA sought payment of this amount from the Harts and then instituted this action against them when the Harts refused to pay. During the service of the loan, the SBA did not at any time provide Hart Trust or the Harts with a written notice of the provisions for deferral and loan payment moratoriums found in 13 C.F.R. § 131.
After consideration of these facts, the district court concluded that SBA borrowers have a legal entitlement to loan deferral consideration, and that Hart Trust was denied that consideration without procedural due process. In reaching this conclusion, the court relied on cases interpreting deferral procedures used by the Farmers Home Administration (FmHA). The court noted that the FmHA cases were not binding authority, but because of the parallels between the language and purposes of the FmHA and SBA loan program statutes, the court felt justified in relying upon the FmHA cases when considering due process requirements in the SBA loan deferral program. The court concluded that the SBA should be held to the same due process standards that have been applied to the FmHA.
In examining FmHA cases, the court adopted the rule expressed in Allison v. Black, 723 F.2d 631, 634 (8th Cir.1983):
The requirement of a request by the borrower prior to consideration for section 1981a relief presupposes that the borrower has knowledge of the availability of such relief. Notice to the borrower is therefore indispensable. In like manner, the requirement of a showing of prima facie eligibility is necessarily premised upon the expectation that some procedure will be provided under which the borrower may make the requisite showing. Thus, the rudimentary elements of adequate notice and an opportunity to be heard are embodied in the language of section 1981a.
Based on this language, the court held that Hart Trust should have received written notice of the deferral provisions, and that any constructive notice received by reason of obtaining deferrals was not sufficient. The court also concluded that even if sufficient notice was given, Hart Trust did not have an adequate opportunity to be heard, and thus the procedure used was still infirm.
The district court also was concerned with the lack of substantive standards by which a borrower’s entitlement to deferral relief could be measured. The court criticized the program because the decision to extend deferral relief to a borrower was left to the discretion of the individual SBA loan officer. Thus, the court concluded that there was no safeguard to insure consistent administration of the loan deferral program.
Based on these factors, the district court concluded that Hart Trust
failed to receive due process under the provisions of the Small Business Act because [it was] not afforded a reasonable opportunity for meaningful administrative review of the decisions made by the local loan servicing officer. Meaningful review requires as a minimum the promulgation of standards to be used in measuring deferral rights under the statute, personal notice to borrowers of the availability of and the standards governing deferral, and finally, personal notice of the proper procedure for appealing the loan servicing officer’s decision.
For these reasons, the court granted summary judgment in favor of Hart Trust.
The SBA now appeals, arguing that (1) this circuit’s unpublished opinion, United States v. Parr, 793 F.2d 1288 (5th Cir.), cert. denied, — U.S.-, 107 S.Ct. 320, 93 L.Ed.2d 293 (1986), controls and requires reversal; (2) that due process in the SBA loan program context does not require personal notice of the availability of deferral relief and a meaningful opportunity to be heard; (3) that the FmHA line of cases, and the standards developed in those cases, are not applicable to the SBA; (4) that the SBA does not administer its deferral program in an ad hoc, discretionary, or inconsistent manner; (5) that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone; and (6) that the court erred in holding that the SBA was not entitled to a deficiency judgment. We address these contentions below.
II.
First, we find that Parr controls the first three issues. Under Parr, Hart Trust does not have the right to receive actual written notice of the deferral program and an opportunity to be heard in order for the SBA to have complied with procedural due process standards. Parr also prevents Hart Trust from relying upon FmHA cases as support for that position.
In Parr the borrowers were farmers in Frio County, Texas, and were unable to maintain their obligations under the SBA Disaster Loan Program (the same program involved in the instant case). The Parrs took out two loans with the SBA. The payments on the first loan were deferred three times for a total of 15 months, and the payments on the second loan were deferred twice for a total of 18 months. Eventually the SBA decided to accelerate the loans and place the Parrs in default. The Parrs never tendered a single payment on either of the two loans.
The Parrs argued that (1) the United States had an obligation to continue to extend credit to them because the SBA assured them that their loan obligations would be deferred if they could not make their payments; and (2) that the United States could not accelerate their loans without giving them notice and an opportunity to be heard.
This court found neither argument to be persuasive. As to the Parr’s claim for procedural due process, the court held that
people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration.
As for the Parrs’ claim that they did not receive notice, the court found that
even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second.
Finally, the court dismissed the Parrs’ claim that the government had any duty to continue to make loans to the Parrs, noting that no such obligation was contained in the written promissory notes signed by the Parrs.
The facts of Parr correspond almost exactly with the facts of the instant appeal. In both cases, after having received deferrals, the borrowers were still unable to pay back the loans. The SBA eventually declared the loans to be in default and foreclosed upon the property. In both cases the borrowers argued that due process required that they receive actual notice of the deferral program and an opportunity to be heard on the issue of deferrals. In Parr we rejected that claim, and, therefore, we must follow that precedent and also reject such a contention in the present case.
Hart Trust attempts to minimize Parr’s impact through three arguments. First, it contends that Parr has no precedential value. However, there is no merit to this assertion. Although Parr is unpublished, it is binding precedent. 5th Cir.R. 47.5.3. Moreover, even if we were to disagree with the conclusion reached in Parr, we cannot overrule another Fifth Circuit panel absent an overriding Supreme Court decision or a change in statutory law. Girard v. Drexel Burnham Lambert, Inc., 805 F.2d 607, 610 (5th Cir.1986). Thus, we are bound by Parr. Because Parr is binding precedent, we are not at liberty to consider the potential applicability of the FmHA line of authority.
The second argument made by Hart Trust, which is related to the first, is that this court erred in the holding in Parr that the “SBA has no affirmative obligation to permit its borrowers to exhaust loan options as condition precedent to bringing collection actions against them.” As we stated above, this panel is bound by the Parr holding that the SBA has no such obligation.
Finally, Hart Trust attempts to distinguish Parr factually by asserting that, unlike the Parrs, Hart Trust did not receive actual deferrals. Instead, appellee argues that it received “informal extensions which provided them no loan servicing assistance.” We do not find any support that the alleged “informal extensions” were not deferrals. The relevant deferral provisions are contained in 13 C.F.R. §§ 131.2 and 131.3. Section 131.2 provides: “ ‘Deferment’ means the procedure whereby a lender (participant or SBA) suspends a borrower’s obligation to make payments on a loan for a stated period.” Section 131.3(b) provides: “When SBA has decided to suspend payment on a direct ... loan, a deferment will be approved under administrative procedures, and payment by borrower will not be required for a stated time period.” In the present case, we believe the “informal extensions” were deferrals. Hart Trust had its payment obligations suspended for a stated period of time. We find no merit to Hart Trust’s attempted distinction.
In sum, we hold that we are bound by Parr to conclude that due process does not require personal written notice of the availability of deferral relief and an opportunity to be heard on that issue. Also, our reliance on Parr precludes the ability of this court to find such obligations based upon FmHA loan deferral cases.
III.
The next issue we must consider is whether the SBA administers its deferral program in a discretionary, inconsistent, and ad hoc manner. Regarding this issue the district court held:
In addition to the lack of procedural safeguards, this Court is concerned with the apparent lack of substantive standards whereby a borrower’s entitlement to deferral relief can be measured. While the statute itself provides some general guidance for applying the suspension provisions of the statute, the Administrator has failed to generate uniform criteria to aid the various SBA offices in the exercise of the discretion granted by the statute. In essence, the decision to extend deferral relief to a given borrower is left to the unguided inclinations of the individual SBA loan servicing officer. Thus, the SBA provides no safeguards to insure the consistent administration of the loan deferral relief provisions, [footnotes omitted].
In Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055 [39 L.Ed.2d 270] (1974), the Supreme Court stated that
The power of an administrative agency to administer a Congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress____ No matter how rational or consistent with Congressional intent a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds.
415 U.S. at 231 [94 S.Ct. at 1072]. The present record reflects exactly that. After several informal extensions were granted pro forma at the request of the borrower, the SBA reversed its course, declined to grant any further extension, and proceeded to accelerate defendants’ note without any apparent evaluation of defendants’ situation in light of the deferral provisions of the statute. Such a course is unacceptable given the expressed intention of Congress to make deferral relief available to SBA borrowers when confronted with the circumstances described in the statute.
First, we note that the SBA deferral program is designed to be discretionary. The statutory framework for deferral provides:
(2) The Administration may undertake or suspend for a period of not to exceed 5 years any small business concern’s obligation under this subsection only if—
(A) without such undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become insolvent or remain insolvent;
(B) with the undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become or remain a viable small business entity; and
(C) the small business concern executes an agreement in writing satisfactory to the Administration as provided by paragraph (4).
15 U.S.C. § 634(e)(2) (emphasis added). The legislative history of this statute confirms this view:
The Senate bill basically gives SBA the same authority [as that of the House bill] except that it would be discretionary rather than mandatory to grant the moratorium. The Senate bill also limits eligibility to borrowers who are still viable prior to the granting of the suspension and authorizes the SBA to require the borrower to take such action as is appropriate to assure that the rights and interests of the lender will be safeguarded.
The conference substitute adopts the Senate provision but extends eligibility to small businesses which have already become insolvent providing that with the moratorium the small business could again become a viable entity.
(emphasis added). H.R.Conf.Rep. No. 95-535, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad.News 821, 843, 848.
The district court, however, was concerned that while the decision to extend a deferral may be discretionary, there are not any uniform criteria to aid the various SBA offices in the exercise of its discretion. Thus, the decision of whether to extend deferral relief to a borrower is left to the unguided inclinations of the individual SBA officer, giving rise to potential inconsistent results. We disagree. While there is a certain degree of unguided discretion, that discretion was purposefully added to the deferral program. Moreover, the SBA is not completely unguided in its administration of the program. The statute does provide the parameters of when the SBA may defer repayment of a loan. It may do so only if (1) without such suspension of the obligation the business would become insolvent or remain insolvent, (2) with such suspension the business would become or remain a viable business, and (3) the business executes a repayment agreement. 15 U.S.C. § 634(e)(2). Only when these three criteria are met is the business entitled to deferment, and even then at the discretion of the SBA. Thus, we do not believe that the SBA is left to its unguided inclinations in deciding when deferral is proper.
Finally, the district court was concerned that the deferral program in the instant case was implemented in an ad hoc manner, without any evaluation of Hart Trust’s situation. The facts of this case belie such a contention. In January 1979 Hart Trust requested a 90-day extension for making the January 1979 payment. This request was granted, and even then payment was not made until November. In April 1980 Hart Trust requested a deferral for the second payment that was due in January 1980. This payment was deferred until July 1980. Hart Trust then requested a deferral until November 1980, which was also granted. This payment, however, was never made.
In May 1981 the SBA sent Hart Trust a collection letter requesting that the loan be brought up to date or that other arrangements be made. In June 1981 the SBA demanded payment of the loan. Hart Trust responded in July 1981, requesting that the SBA delay taking any action pending its obtaining another loan that would be used to pay the SBA. Still, no payment was made. In December 1981 the SBA made another demand for payment; payment was not made. In April 1982 the SBA contacted a representative of Hart Trust regarding the loan and agreed to delay taking any liquidation action after being assured that payment would soon be made. It was not.
Finally, after being in default over two years, on May 10, 1982, the SBA accelerated the loan. The Hart’s property securing the loan was sold on September 7,1982. Then, in November 1982 the SBA wrote the Hart’s demanding payment of the balance of the loan that was not satisfied by the sale of the property. In this letter, the SBA still offered to accommodate the Hart’s if they were still having financial difficulties.
These facts illustrate that the SBA did not administer Hart Trust’s loan in an ad hoc manner without any evaluation of its financial situation. On the contrary, the SBA was patient and accommodating, and it complied with its rules and regulations. The SBA gave Hart Trust more than an adequate opportunity to try to work out a repayment plan. We find no merit to this claim.
IV.
The SBA next contends that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone. We believe that the SBA has incorrectly interpreted the court’s discussion of Stone. We do not think that the court relied on Stone for its holding; rather, the court merely noted that the “SBA has already implemented a program in Georgia pursuant to a settlement entered in the case of Stone v. Cardenas ... which would go a long way towards satisfying the procedural defects noted by the Court in this opinion.” (footnote omitted). We do not read this statement as one indicating a reliance by the court on Stone for its holding. Instead, the court is merely suggesting a solution to the problems it identified. Therefore, we do not address the SBA’s argument of whether the district court erred in giving probative value to Stone. Instead, we dismiss the discussion relating to Stone as dicta.
V.
The SBA’s final argument is that the district court erred in not granting summary judgment in its favor, holding that it was entitled to a deficiency judgment. We agree. In this case, both parties agreed to submit the case for summary resolution based on the stipulated facts and trial briefs. Since we hold that the district court erred in granting summary judgment in favor of Hart Trust, judgment must now be entered in favor of the SBA.
VI.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case to the court to enter judgment in favor of the SBA.
APPENDIX
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
BRUCE EDWARD PARR and GRACE M. PARR, Defendants-Appellants.
No. 85-1424
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.
June 24, 1986
Appeal from the United States District Court for the Northern District of Texas
Before CLARK, Chief Judge, JOLLY and HILL, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In 1978 and 1979, Bruce and Grace Parr (the Parrs) borrowed money from the United States through the Small Business Association (SBA) Disaster Loan Program. Although the SBA deferred repayment of these loans several times, the Parrs were unable to tender their required payments. In April 1982, the SBA accelerated the notes and in March 1983 brought this action against the Parrs to recover the amounts due. The Parrs, acknowledging their indebtedness, asserted three affirmative defenses. Prior to trial, the district court struck two of these defenses and allowed the case to proceed to trial before a jury on the remaining defense. At the close of all evidence, the district court granted the United States’ motion for directed verdict and entered judgment for the United States.
On appeal, we are asked to determine whether the district court erred either by striking the two affirmative defenses or by granting the directed verdict for the United States. As we find no error, we affirm.
I.
A.
The Parrs have been farmers in Frio County, Texas for over forty-four years. After suffering substantial financial losses, the Parrs, upon the recommendation of a local banker, investigated the possibility of obtaining loans from the SBA Disaster Loan Program. According to the Parrs, SBA officials advised them that the Disaster Loan Program was not a “one shot” situation, but rather that the SBA would continue to lend operating funds in the future. The Parrs also contend that the SBA officials represented that payments due during disaster years would be deferred or restructured and that repayment of the loan would be conditioned upon normal production.
Based on these representations, on December 15, 1978, the Parrs borrowed $189,-000 at three percent interest from the SBA. The loan was evidenced by a promissory note which stated that the first payment was due on April 1, 1980. The Parrs continued to suffer financial stress and thus on May 17, 1979, borrowed an additional $195,000 at three percent interest from the SBA. This debt, also evidenced by a promissory note, required the first payment to be tendered on February 1,1980. On January 24, 1980, the SBA deferred payment on the loan until August 1, 1980.
Meanwhile, the April 1 repayment date on the first loan was quickly approaching and the Parrs were still in financial straits. Unable to make the loan payments from the proceeds of their farm production, the Parrs applied for yet another loan and the SBA agreed to defer payment until October 1, 1980. Both the August 1, 1980 repayment date for the second loan and the October 1, 1980 repayment date for the first loan passed without payments by the Parrs. On October 21, 1980, the SBA notified the Parrs that they had been allowed duplicated benefits and demanded repayment of $13,809; the SBA also reminded the Parrs that payments on both loans were past due. On November 6, 1980, the Parrs repaid the $13,809, but did not tender any payments due on either loan.
On November 25 and December 5, the SBA wrote the Parrs that repayment on the first loan was again being deferred, this time to April 1, 1981. The SBA notified the Parrs, however, that both loans were seriously delinquent. The Parrs still did not tender payment on the second loan, even though the date for the second payment on this loan, February 1, 1981, was approaching. Without ever having received the first payment which was due on August 1, 1980, the SBA deferred the second payment from February to August 1981.
The April 1, 1981 repayment date for the first loan passed without any repayment. On May 13, the SBA deferred for the third time the first payment on the first loan to July 1, 1981. When this date passed without payment, the SBA wrote to the Parrs, requesting payments on August 12, August 25, September 4, and October 1, 1981. In addition, the August 1, 1981 repayment date for the second note also passed without payment. On October 21, the SBA wrote the Parrs about these overdue payments, and on November 19, notified the Parrs that both debts were being accelerated. Acceleration letters were sent again on April 1, 1982. Except for the repayment of $13,809 to return duplicate benefits, the Parrs failed to tender a single repayment under either loan.
B.
On March 7, 1983, the United States, on behalf of the SBA, brought suit against the Parrs, seeking to recover the amounts due on both loans. The procedural aspects of this action, extending over more than two years, are complex and not relevant to the outcome of this appeal. From the important thrusts and parries, we note that the Parrs admitted executing both promissory notes and receiving demands for payment, but contended that the terms of the contract included representations made to them by SBA officials at the time these loans were negotiated, and that the United States was in default on these additional contract terms which caused the Parrs to sustain monetary damages that more than offset the amount owing to the SBA. Thus, to offset the United States’ prima facie case, and as recoupment for the Parrs’ loss, the Parrs, in the second amended pretrial order, asserted the following three affirmative defenses:
1. Defendant asserts that he suffered crop disasters in 1977, 1978, 1979 and 1980. He obtained loans for the first two disasters and processed application for the third and fourth. The third application was granted and funding was refused by local SBA officials. Defendant contends that this action caused his default and is an offset in law and equity.
2. Defendants assert that the Plaintiff is estopped from liquidating, accelerating or otherwise attempting to foreclose without first giving defendants notice and opportunity to request deferral in accord with Title 13 C.F.R. and that such action by plaintiff would violate defendants’ constitutional right to due process under the Fifth Amendment.
3. Defendants assert that Plaintiff is in material breach of the contract between the parties and that the defendants are not obligated to further performances under the contract.
On April 19, 1985, the United States moved to strike these defenses under Federal Rule of Civil Procedure 12(f). On May 7, 1985, the district court partially granted the United States’ motion to strike, leaving the Parrs with only their third affirmative defense. The court also granted the United States’ motion in limine, preventing the Parrs from introducing evidence or testimony regarding rejected loan applications filed by the Parrs with the SBA after the first and second loans were executed.
A jury trial began on May 7, focusing primarily on the Parrs’ assertion that the United States was in material breach on the contract between the parties. The United States established its prima facie case of the Parrs’ indebtedness on the 1978 and 1979 loans and rested its case. The Parrs then offered testimony by seven witnesses to show that additional representations, not apparent on the face of the written agreement, were made to the Parrs and that these representations were material terms of the loan agreement. After the Parrs rested their case, the United States offered no rebuttal evidence. After arguments by the parties, the district court granted the United States’ motion for a directed verdict, and ordered that the United States recover from the Parrs $437,-478.14, plus interest. The Parrs filed a timely notice of appeal.
II.
A.
The Parrs raise two issues on appeal. First, the Parrs contend that the district court erred as a matter of law in striking their first two affirmative defenses. Second, the Parrs argue that the district court erred in granting the United States’ motion for a directed verdict.
B.
The Parrs assert two reasons why it was error for the district court to strike two of their affirmative defenses before trial. First, the Parrs contend that the United States’ motion to strike was untimely as it was filed more than twenty days after the Parrs’ pleading was served on the government. See Fed.Rule of Civ.Pro. 12(f). While the Parrs accurately assess the time periods involved, we note that they did not raise this issue to the district court when responding to the United States’ motion to strike. Since issues not raised below will generally not be considered on appeal, we decline to reverse the motion to strike on this ground.
The Parrs’ second contention is that the district court erred in finding the affirmative defenses insufficient as a matter of law. The first defense asserts that the Parrs defaulted on their loans because applications for a third and fourth loan were denied. Clearly, this defense is legally insufficient because a decision not to extend further credit does not offset an already existing obligation, unless the creditor has an obligation to lend additional funds. The Parrs’ contention that the United States did have such an obligation is the sole basis of the third affirmative defense. See infra p. 1250. Since the first and third defenses, when examined, are overlapping, the district court’s decision to strike the first defense was not an abuse of discretion.
The second affirmative defense contends that the United States is estopped from accelerating debts on the loans without first giving the Parrs notice and an opportunity to request deferrals. We find this defense difficult to understand. First, the Supreme Court has held that people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration. Second, even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second. Since the Parrs had actual notice of their right to receive deferrals, any claim for not being informed of this right is moot. Thus, the district court properly granted the motion to strike the Parrs’ second affirmative defense.
C.
The Parrs’ second contention on appeal is that the district court erred as a matter of law when it granted the United States’ motion for a directed verdict. The Parrs’ claim seems to be that the contract between the Parrs and the SBA included assurances that the SBA would not require any payments on the loans during disaster years and that the SBA breached this agreement. As a result of this alleged breach, the Parrs assert, they have a valid set-off against the SBA’s prima facie case. We disagree.
We do not decide what representations, if any, were made to the Parrs because, even if the asserted representations were made, they do not become terms of the loan agreement between the SBA and the Parrs. “Regardless of the strong moral implications, it is well established that the Government is not bound by the unauthorized or incorrect statements of its agents.” Posey v. United States, 449 F.2d 228, 234 (5th Cir.1971). Accord United States v. R & D One Stop Records, Inc., 661 F.2d 433, 434-35 (5th Cir.1981). Since no terms could have been added to the written promissory notes beyond those authorized by federal regulation, and since the SBA complied with its own regulations, any unauthorized or incorrect representation made to the Parrs did not become terms of the loan agreement. Thus, the district court properly granted the United States’ motion for directed verdict because, as a matter of law, the Parrs had no defense to the government’s complaint.
III.
We find that the district court did not err in striking two of the Parrs’ affirmative defenses to the United States’ prima facie case. Since there was no error in granting the directed verdict in favor of the United States, the judgment of the district court is AFFIRMED.
. The court noted in conclusion that the SBA had already implemented a program in Georgia pursuant to a settlement entered in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D.Ga. 1982), that would go a long way towards satisfying the procedural defects it had found.
The Parr opinion is reprinted in full in the appendix to this opinion.
. Hart Trust also seems to contend that a true deferral entails a period when interest does not accrue on the amount due and payable. Since it only received postponement periods during which interest continued to accrue, it did not receive a true deferral. We also find no statutory or regulatory basis for this distinction and decline to adopt it.
. We do recommend, as the district court also does, that the SBA implement procedures similar to those established in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D. Georgia 1982). First, such procedures will benefit both the SBA and the borrower. The SBA would then have a guide for determining exactly how much service to provide a borrower in its loan deferral program. Finally, such an addition would merely be implementing an existing practice. Also, such a procedure will, without doubt, notify the borrower of the deferral program and of the limits of the SBA’s service.
Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the court has determined that this opinion should not be published.
. The district court did not state any reasons when granting the directed verdict. Thus, on appeal we review all the evidence in the "light and with all reasonable inferences most favorable to the” Parrs. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).
. This loan application was subsequently denied.
. In their brief, the Parrs list the affirmative defenses included in the original pretrial order entered into on March 15, 1985. These defenses were modified in a second pretrial order entered into on May 6, 1985. The order to strike and the trial properly relied on only the defenses contained in the May 6 order. On appeal, we consider only these defenses.
. The Parrs vigorously assert that since the United States did not specifically advance this argument when moving for a directed verdict, this court cannot affirm on this ground. We disagree. “The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court." Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156 n. 6, 25 L.Ed.2d 491 (1970).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Salvatore PETRELLA, Defendant-Appellant.
No. 798, Docket 82-1342.
United States Court of Appeals, Second Circuit.
Argued Feb. 8, 1983.
Decided May 11, 1983.
Jeffrey B. Meller, Burlington, Vt., for defendant-appellant.
George W.F. Cook, U.S. Atty., D.Vt., Rut-land, Vt., George J. Terwilliger, III, Asst. U.S. Atty., P. Scott McGee, Asst. U.S. Atty., Burlington, Vt., for plaintiff-appellee.
Before LUMBARD and CARDAMONE, Circuit Judges, and ZAMPANO, District Judge.
Honorable Robert C. Zampano, United States District Judge for the District of Connecticut, sitting by designation.
ZAMPANO, District Judge:
The sole issue raised on this appeal is whether a defendant, indicted under 8 U.S.C. § 1326 for unlawful reentry into this country after deportation, may challenge the validity of the original order of deportation as a defense to the prosecution. We conclude that the underlying deportation is not subject to collateral attack in a § 1326 criminal proceeding and we therefore affirm appellant’s conviction.
I
Appellant, Salvatore Petrella, was admitted to the United States in 1978 as a visitor to inspect and study a training program for machine tool operators in Billerica, Massachusetts. Petrella decided to enroll in the program and a one-year trainee visa was issued by the Immigration and Naturalization Service (“INS”). When the visa expired, he failed to depart voluntarily and a deportation warrant issued. With the aid of retained counsel, who represented him before the INS Petrella delayed his departure from the United States for an additional three years. Finally, a deportation order was issued, from which no appeal for judicial review was perfected. On April 19, 1982, Petrella was arrested and deported to Italy.
Approximately a month later, Petrella flew from Italy to Canada and unsuccessfully attempted to enter this country at Niagara Falls. Undaunted, he again attempted to cross the border at Highgate Springs, Vermont on May 23, 1982. In response to routine questions by Immigration Inspectors, Petrella stated he was an United States Citizen and produced a Social Security Card and a Massachusetts driver’s license to support his claim. A search of his automobile yielded an Italian passport and, after further questioning, he was arrested and charged with willfully making a false claim of citizenship, 18 U.S.C. § 911, and with attempting to enter the United States without authorization after deportation, 8 U.S.C. § 1326.
Prior to trial, Petrella moved to dismiss the indictment on the ground that the 1979 deportation proceedings did not comport with due process. The District Court refused to review the merits of the deportation and denied the motion. On July 21,1982, a jury found appellant guilty on both charges.
II
In United States v. Spector, 343 U.S. 169, 172-73, 72 S.Ct. 591, 593-594, 96 L.Ed. 863 (1952), the Supreme Court reserved decision on whether a defendant may relitigate the issue of original deportability in a criminal prosecution in which the prior deportation is an element of the offense. The courts of appeals that have addressed the question in the context of a § 1326 prosecution are divided as to whether collateral attacks are permissible.
The Third, Seventh and Ninth Circuits have approved varying degrees of trial court review of the underlying deportation. See, e.g., United States v. Rosal-Aguilar, 652 F.2d 721, 722-23 (7 Cir.1981) (government must prove the deportation was “based on a valid legal predicate and obtained according to law”); United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9 Cir.1980) (defendant entitled to demonstrate that a violation of an INS regulation prejudiced a protected interest); United States v. Bowles, 331 F.2d 742, 750 (3 Cir.1964) (defendant permitted to show there was no factual or legal basis for his deportation).
The Eighth Circuit, while indicating that a limited pretrial review of the deportation hearing may be permissible in some circumstances, Hernandez-Uribe v. United States, 515 F.2d 20, 22 (8 Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976), has not squarely addressed the question. See United States v. Cabrera, 650 F.2d 942, 943 (8 Cir.1981).
The Fifth Circuit, after careful analysis of the elaborate scheme of administrative and judicial review already available to an alien under other provisions of the Immigration and Nationality Act (“INA”), has determined that Congress intended to bar collateral attacks on deportation orders in § 1326 prosecutions. United States v. De La Cruz-Sepulveda, 656 F.2d 1129, 1131 (5 Cir.1981); United States v. Gonzalez-Parra, 438 F.2d 694, 697 (5 Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971). The Tenth Circuit, in Arriaga-Ramirez v. United States, 325 F.2d 857, 859 (10 Cir.1963), has also rejected collateral review but with little supporting analysis.
Ill
Our analysis begins with the language of the unlawful reentry statute which provides in relevant part: “Any alien who — (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States ... shall be guilty of a felony .... ” 8 U.S.C. § 1326. The lack of any express reference to the validity of the deportation or of the arrest indicates that the statute seeks to punish the unauthorized reentry of an alien previously deported, regardless of whether the deportation was “lawful.”
We next examine the relevant provisions of the INA relating to judicial review of deportation orders. There are three “sole and exclusive” avenues for judicial intervention available to an alien who has exhausted his administrative remedies under the immigration laws and has not yet departed the United States. 8 U.S.C. § 1105a. First, he may obtain civil judicial review of the rulings of the Board of Immigration Appeals in the federal courts of appeals if he petitions for review within six months of the date of the deportation order. 8 U.S.C. § 1105a(a). Second, if he is in custody pursuant to the deportation order, he is entitled to habeas corpus review. 8 U.S.C. § 1105a(a)(9). Third, in a criminal prosecution under 8 U.S.C. § 1252(e) (willful failure to depart) or under 8 U.S.C. § 1252(d) (violation of supervisory regulations), the defendant may obtain pretrial judicial review. 8 U.S.C. § 1105a(a)(6).
Thus, neither the statute on its face nor the statutory scheme for review of deportation orders authorizes a challenge to the original deportation. We conclude, therefore, that Congress intended to bar collateral attacks in § 1326 prosecutions.
This conclusion is fortified by our discussion of the issue in question in United States v. Pereira, 574 F.2d 103 (2 Cir.), cert. denied, 439 U.S. 847, 99 S.Ct. 145, 58 L.Ed.2d 148 (1978). In that § 1326 prosecution, the defendant had been convicted of three counts of burglary, two counts of theft, and one count of escape from imprisonment. He was ordered deported on several occasions, and had previously been convicted of an illegal reentry violation. We found the defendant’s continuing and flagrant disregard of the immigration laws so egregious that we affirmed his conviction on the facts, expressly reserving decision on whether defendants in other situations could collaterally attack the underlying deportation on which a § 1326 prosecution is based. In doing so, however, we expressed the view that the statutory deportation procedures “may not envision judicial review of deportation orders in cases like that at bar,” 574 F.2d at 105 n. 4. See also United States v. Espinoza-Soto, 476 F.Supp. 364, 366 (E.D.N.Y.1979), aff’d, 633 F.2d 207 (2 Cir.1980); United States v. Mohammed, 372 F.Supp. 1048, 1049 (S.D.N.Y.1973).
Apart from the question of whether the statutory scheme authorizes collateral attack, Petrella argues that an agency determination not subjected to judicial review may not, under the due process clause, conclusively establish an element of a criminal offense. He accordingly argues that he has a constitutional right to judicial review of the deportation order. We, however, agree with the Fifth Circuit’s analysis in United States v. Gonzalez-Parra, 438 F.2d 694, 697-99 (5 Cir.), cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971), wherein the court held that there is no constitutional right to collateral attack in a § 1326 prosecution. See United States v. Pereira, 574 F.2d at 106 n. 7.
Accordingly, the appellant’s conviction is affirmed.
. Any alien who—
(1) has been arrested and deported or excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by fine of not more than $1,000, or both.
. We believe this situation is analogous to a charge under 18 U.S.C. § 751 for escape from imprisonment brought against a defendant serving a sentence which is claimed to be invalid. It has been uniformly held in the § 751 proceedings that a defendant may not contest the propriety of the underlying conviction. See United States v. Pereira, 574 F.2d 103, 106 n. 6 (2 Cir.), cert. denied, 439 U.S. 847, 99 S.Ct. 145, 58 L.Ed.2d 148 (1978) and cases cited therein.
. We are also loathe to add a further avenue of attack on deportation orders, in view of the formidable administrative and judicial arsenal available to litigants seeking review of such orders. The unconscionable delays in the deportation process that can be accomplished through imaginative “use” of the immigration laws is demonstrated by several cases in this Circuit. See, e.g., Lok v. INS, 681 F.2d 107, 107 (2 Cir. 1982) (appellant lived in the United States for 23 years, eleven of them under deportation orders); Pang Kiu Fung v. INS, 663 F.2d 417, 418-19 (2 Cir.1981) (appellant flouted immigration authorities for 13 years and deportation proceedings stretched across a period of over 8 years).
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_issue_1
|
02
|
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.
McDANIEL, WARDEN, et al. v. BROWN
No. 08-559.
Decided January 11, 2010
Per Curiam.
In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id., at 324. A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent’s DNA profile. Nevertheless, relying upon a report prepared by a DNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and granted the writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorari to consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did.
I
Around 1 a.m. on January 29, 1994, 9-year-old Jane Doe was brutally raped in the bedroom of her trailer. Respondent Troy Brown was convicted of the crime. During and since his trial, respondent has steadfastly maintained his innocence. He was, however, admittedly intoxicated when the crime occurred, and after he awoke on the following morning he told a friend “ ‘he wished that he could remember what did go on or what went on.’ ” App. 309.
Troy and his brother Travis resided near Jane Doe in the same trailer park. Their brother Trent and his wife Raquel lived in the park as well, in a trailer across the street from Jane Doe’s. Both Troy and Trent were acquainted with Jane Doe’s family; Troy had visited Jane Doe’s trailer several times. Jane did not know Travis. The evening of the attack, Jane’s mother, Pam, took Jane to Raquel and Trent’s trailer to babysit while the three adults went out for about an hour. Raquel and Trent returned at about 7:30 p.m. and took Jane home at about 9:30 p.m. Pam stayed out and ended up drinking and playing pool with Troy at a nearby bar called the Peacock Lounge. Troy knew that Jane and her 4-year-old sister were home alone because he answered the phone at the bar when Jane called for her mother earlier that evening.
Troy consumed at least 10 shots of vodka followed by beer chasers, and was so drunk that he vomited on himself while he was walking home after leaving the Peacock at about 12:15 a.m. Jane called her mother to report the rape at approximately 1 a.m. Although it would have taken a sober man less than 15 minutes to walk home, Troy did not arrive at his trailer until about 1:30 a.m. He was wearing dark jeans, a cowboy hat, a black satin jacket, and boots. Two witnesses saw a man dressed in dark jeans, a cowboy hat, and a black satin jacket stumbling in the road between the two trailers shortly after 1 a.m.
The bedroom where the rape occurred was dark, and Jane was unable to conclusively identify her assailant. When asked whom he reminded her of, she mentioned both Troy and his brother Trent. Several days after the rape, she identified a man she saw on television (Troy) as her assailant but then stated that the man who had sent flowers attacked her. It was Trent and Raquel who had sent her flowers, not Troy. She was unable to identify Troy as her assailant out of a photo lineup, and she could not identify her assailant at trial. The night of the rape, however, she said her attacker was wearing dark jeans, a black jacket with a zipper, boots, and a watch. She also vividly remembered that the man “stunk real, real bad” of “cologne, or some beer or puke or something.” Id., at 172-173.
Some evidence besides Jane’s inconsistent identification did not inculpate Troy. Jane testified that she thought she had bitten her assailant, but Troy did not have any bite marks on his hands when examined by a police officer approximately four hours after the attack. Jane stated that her assailant’s jacket had a zipper (Troy’s did not) and that he wore a watch (Troy claimed he did not). Additionally, there was conflicting testimony as to when Troy left the Peacock and when Pam received Jane’s call reporting the rape. The witnesses who saw a man stumbling between the two trailers reported a bright green logo on the back of the jacket, but Troy’s jacket had a yellow and orange logo. Finally, because Jane thought she had left a night light on when she went to bed, the police suspected the assailant had turned off the light. The only usable fingerprint taken from the light did not match Troy’s, and the police did not find Troy’s fingerprints in the trailer.
Other physical evidence, however, pointed to Troy. The police recovered semen from Jane’s underwear and from the rape kit. The State’s expert, Renee Romero, tested the former and determined that the DNA matched Troy’s and that the probability another person from the general population would share the same DNA (the “random match probability”) was only 1 in 3 million. Troy’s counsel did not call his own DNA expert at trial, although he consulted with an expert in advance who found no problems with Romero’s test procedures. At some time before sentencing, Troy’s family had additional DNA testing done. That testing showed semen taken from the rape kit matched Troy’s DNA, with a random match probability of 1 in 10,000.
The jury found Troy guilty of sexual assault and sentenced him to life with the possibility of parole after 10 years. On direct appeal, the Nevada Supreme Court considered Troy’s claim that his conviction was not supported by sufficient evidence, analyzing “whether the jury, acting reasonably, could have been convinced of [Troy’s] guilt beyond a reasonable doubt.” Brown v. Nevada, 113 Nev. 275, 285, 934 P. 2d 235, 241 (1997) (per curiam). The court rejected the claim, summarizing the evidence of guilt as follows:
“Testimony indicated that Troy left the bar around 12:15 a.m., that Troy lived relatively close to the bar, and that Troy lived very close to Jane Doe. Troy had enough time to get from the bar to Jane Doe’s house and to assault Jane Doe before she made the telephone call to her mother at approximately 1:00 a.m. While Jane Doe could not identify her assailant, her description of his clothing was similar to what Troy was wearing; she also said that her assailant smelled like beer or vomit and testimony indicated that Troy had been drinking beer and had vomited several times that night. Furthermore, testimony indicated that Troy got home at approximately 1:30 a.m., which gave him enough time to assault Jane Doe. Additionally, [witnesses] testified that they saw someone resembling Troy in a black jacket and black hat stumbling in the road near Jane Doe’s house at 1:05 a.m. Troy also washed his pants and shirt when he got home, arguably to remove the blood evidence from his clothes. Finally, the DNA evidence indicated that semen collected from Jane Doe’s underwear matched Troy’s and that only 1 in 3,000,000 other people had matching DNA (the second DNA test indicated that 1 in 10,000 people had matching DNA).” Ibid., 934 P. 2d, at 241-242.
Respondent also argued on appeal that the trial court erred in failing to conduct a pretrial hearing to determine whether the DNA evidence was reliable. The court found respondent had not raised this issue in the trial court and concluded there was no plain error in the trial court’s failure to conduct a hearing. Id., at 284, 934 P. 2d, at 241.
In 2001, respondent sought state postconviction relief, claiming, inter alia, that his trial counsel was constitutionally ineffective for failing to object to the admission of the DNA evidence. He argued that there were a number of foundational problems with the DNA evidence, and that if trial counsel had objected, the evidence would have been excluded or at least its importance diminished. He noted that because trial counsel “totally failed to challenge the DNA evidence in the case,” counsel “failed to preserve valid issues for appeal.” App. 1101. The state postconviction court denied relief, id., at 1489-1499, and the Nevada Supreme Court affirmed, judgt. order reported at 119 Nev. 797, 130 P. 3d 673 (2003).
Respondent thereafter filed this federal habeas petition, claiming there was insufficient evidence to convict him on the sexual assault charges and that the Nevada Supreme Court’s rejection of his claim was both contrary to, and an unreasonable application of, Jackson. He did. not bring a typical Jackson claim, however. Rather than argue that the totality of the evidence admitted against him at trial was constitutionally insufficient, he argued that some of the evidence should be excluded from the Jackson analysis. In particular, he argued that Romero’s testimony related to the DNA evidence was inaccurate and unreliable in two primary respects: Romero mischaracterized the random match probability and misstated the probability of a DNA match among his brothers. Absent that testimony, he contended, there was insufficient evidence to convict him.
In support of his claim regarding the accuracy of Romero’s testimony, respondent submitted a report prepared by Laurence Mueller, a professor in ecology and evolutionary biology (Mueller Report). The District Court supplemented the record with the Mueller Report, even though it was not presented to any state court, because “the thesis of the report was argued during post-conviction.” Brown v. Farwell, No. 3:03-cv-00712-PMP-VPC, 2006 WL 6181129, *5, n. 2 (D Nev., Dec. 14, 2006).
Relying upon the Mueller Report, the District Court set aside the “unreliable DNA testimony” and held that without the DNA evidence “a reasonable doubt would exist in the mind of any rational trier of fact.” Id., at *7. The court granted respondent habeas relief on his Jackson claim.
The Ninth Circuit affirmed. 525 F. 3d 787. The court held the Nevada Supreme Court had unreasonably applied Jackson. 525 F. 3d, at 798; see 28 U. S. C. § 2254(d)(1). The Court of Appeals first reasoned “the admission of Romero’s unreliable and misleading testimony violated Troy’s due process rights,” so the District Court was correct to exclude it. 525 F. 3d, at 797. It then “weighed the sufficiency of the remaining evidence,” including the District Court’s “catalogue] [of] the numerous inconsistencies that would raise a reasonable doubt as to Troy’s guilt in the mind of any rational juror.” Ibid. In light of the “stark” conflicts in the evidence and the State’s concession that there was insufficient evidence absent the DNA evidence, the court held it was objectively unreasonable for the Nevada Supreme Court to reject respondent’s insuffieieney-of-the-evidence claim. Id., at 798.
We granted certiorari, 555 U. S. 1152 (2009), to consider two questions: the proper standard of review for a Jackson claim on federal habeas, and whether such a claim may rely upon evidence outside the trial record that goes to the reliability of trial evidence.
II
Respondent’s claim has now crystallized into a claim about the import of two specific inaccuracies in the testimony related to the DNA evidence, as indicated by the Mueller Report. The Mueller Report does not challenge Romero’s qualifications as an expert or the validity of any of the tests that she performed. Mueller instead contends that Romero committed the so-called “prosecutor’s fallacy” and that she underestimated the probability of a DNA match between respondent and one of his brothers.
The prosecutor’s fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. See Nat. Research Council, Comm, on DNA Forensic Science, The Evaluation of Forensic DNA Evidence 133 (1996) (“Let P equal the probability of a match, given the evidence genotype. The fallacy is to say that P is also the probability that the DNA at the crime scene came from someone other than the defendant”). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor’s fallacy. It is further error to equate source probability with probability of guilt, unless there is no explanation other than guilt for a person to be the source of crime-scene DNA. This faulty reasoning may result in an erroneous statement that, based on a random match probability of 1 in 10,000, there is a 0.01% chance the defendant is innocent or a 99.99% chance the defendant is guilty.
The Mueller Report does not dispute Romero’s opinion that only 1 in 3 million people would have the same DNA profile as the rapist. Mueller correctly points out, however, that some of Romero’s testimony — as well as the prosecutor’s argument — suggested that the evidence also established that there was only a 0.000033% chance that respondent was innocent. The State concedes as much. Brief for Petitioners 54. For example, the prosecutor argued at closing the jury could be “99.999967 percent sure” in this case. App. 730. And when the prosecutor asked Romero, in a classic example of erroneously equating source probability with random match probability, whether “it [would] be fair to say ... that the chances that the DNA found in the panties — the semen in the panties — and the blood sample, the likelihood that it is not Troy Brown would be .000033,” id., at 460, Romero ultimately agreed that it was “not inaccurate” to state it that way, id., at 461-462.
Looking at Romero’s testimony as a whole, though, she also indicated that she was merely accepting the mathematical equivalence between 1 in 3 million and the percentage figure. At the end of the colloquy about percentages, she answered affirmatively the court’s question whether the percentage was “the same math just expressed differently.” Id., at 462. She pointed out that the probability a brother would match was greater than the random match probability, which also indicated to the jury that the random match probability is not the same as the likelihood that someone other than Troy was the source of the DNA.
The Mueller Report identifies a second error in Romero’s testimony: her estimate of the probability that one or more of Troy’s brothers’ DNA would match. Romero testified there was a 1 in 6,500 (or 0.02%) probability that one brother would share the same DNA with another. Id., at 469, 472. When asked whether “that change[s] at all with two brothers,” she answered no. Id., at 472. According to Mueller, Romero’s analysis was misleading in two respects. First, she used an assumption regarding the parents under which siblings have the lowest chance of matching that is biologically possible, but even under this stingy assumption she reported the chance of two brothers matching (1 in 6,500) as much lower than it is (1 in 1,024 under her assumption). Second, using the assumptions Mueller finds more appropriate, the probability of a single sibling matching respondent is 1 in 263, the probability that among two brothers one or more would match is 1 in 132, and among four brothers it is 1 in 66. Id., at 1583.
In sum, the two inaccuracies upon which this case turns are testimony equating random match probability with source probability, and an underestimate of the likelihood that one of Troy’s brothers would also match the DNA left at the scene.
III
Although we granted certiorari to review respondent’s Jackson claim, the parties now agree that the Court of Appeals’ resolution of his claim under Jackson was in error. See Brief for Respondent 2-3; Reply Brief for Petitioners 1. Indeed, respondent argues the Court of Appeals did not decide his case under Jackson at all, but instead resolved the question whether admission of Romero’s inaccurate testimony rendered his trial fundamentally unfair and then applied Jackson to determine whether that error was harmless.
Although both petitioners and respondent are now aligned on the same side of the questions presented for our review, the ease is not moot because “the parties continue to seek different relief” from this Court. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. 438, 446 (2009). Respondent primarily argues that we affirm on his proposed alternative ground or remand to the Ninth Circuit for analysis of his due process claim under the standard for harmless error of Brecht v. Abrahamson, 507 U. S. 619 (1993). The State, on the other hand, asks us to reverse. Respondent and one amicus have also suggested that we dismiss the case as improvidently granted, Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 27-28, but we think prudential concerns favor our review of the Court of Appeals’ application of Jackson. Cf. Pacific Bell, supra, at 447.
Respondent no longer argues it was proper for the District Court to admit the Mueller Report for the purpose of evaluating his Jackson claim, Brief for Respondent 35, and concedes the “purpose of a Jackson analysis is to determine whether the jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence violated due process,” id., at 2. There has been no suggestion that the evidence adduced at trial was insufficient to convict unless some of it was excluded. Respondent’s concession thus disposes of his Jackson claim. The concession is also clearly correct. An “appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s ease against the defendant was so lacking that the trial court should have entered a judgment of acquittal.” Lockhart v. Nelson, 488 U. S. 33, 39 (1988). Because reversal for insufficiency of the evidence is equivalent to a judgment of acquittal, such a reversal bars a retrial. See Burks v. United States, 437 U. S. 1, 18 (1978). To “make the analogy complete” between a reversal for insufficiency of the evidence and the trial court’s granting a judgment of acquittal, Lockhart, 488 U. S., at 42, “a reviewing court must consider all of the evidence admitted by the trial court,” regardless of whether that evidence was admitted erroneously, id., at 41.
Respondent therefore correctly concedes that a reviewing court must consider all of the evidence admitted at trial when considering a Jackson claim. Even if we set that concession aside, however, and assume that the Court of Appeals could have considered the Mueller Report in the context of a Jackson claim, the court made an egregious error in concluding the Nevada Supreme Court’s rejection of respondent’s insuffieieney-of-the-evidence claim “involved an unreasonable application of . . . clearly established Federal law,” 28 U. S. C. § 2254(d)(1).
Even if the Court of Appeals could have considered it, the Mueller Report provided no warrant for entirely excluding the DNA evidence or Romero’s testimony from that court’s consideration. The Report did not contest that the DNA evidence matched Troy. That DNA evidence remains powerful inculpatory evidence even though the State concedes Romero overstated its probative value by failing to dispel the prosecutor’s fallacy. And Mueller’s claim that Romero used faulty assumptions and underestimated the probability of a DNA match between brothers indicates that two experts do not agree with one another, not that Romero’s estimates were unreliable.
Mueller’s opinion that “the chance that among four brothers one or more would match is 1 in 66,” App. 1583, is substantially different from Romero’s estimate of a 1 in 6,500 chance that one brother would match. But even if Romero’s estimate is wrong, our confidence in the jury verdict is not undermined. First, the estimate that is more pertinent to this case is 1 in 132 — the probability of a match among two brothers — because two of Troy’s four brothers lived in Utah. Second, although Jane Doe mentioned Trent as her assailant, and Travis lived in a nearby trailer, the evidence indicates that both (unlike Troy) were sober and went to bed early on the night of the crime. Even under Mueller’s odds, a rational jury could consider the DNA evidence to be powerful evidence of guilt.
Furthermore, the Court of Appeals’ discussion of the non-DNA evidence departed from the deferential review that Jackson and § 2254(d)(1) demand. A federal habeas court can only set aside a state-court decision as “an unreasonable application of . . . clearly established Federal law,” § 2254(d)(1), if the state court’s application of that law is “objectively unreasonable,” Williams v. Taylor, 529 U. S. 362, 409 (2000). And Jackson requires a reviewing court to review the evidence “in the light most favorable to the prosecution.” 443 U. S., at 319. Expressed more fully, this means a reviewing court “faced with a record of historical facts that supports conflicting inferences must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id., at 326; see also Schlup v. Delo, 513 U. S. 298, 330 (1995) (“The Jackson standard... looks to whether there is sufficient evidence which, if credited, could support the conviction”). The Court of Appeals acknowledged that it must review the evidence in the light most favorable to the prosecution, but the court’s recitation of inconsistencies in the testimony shows it failed to do that.
For example, the court highlights conflicting testimony regarding when Troy left the Peacock. 525 F. 3d, at 797. It is true that if a juror were to accept the testimony of one bartender that Troy left the bar at 1:30 a.m., then Troy would have left the bar after the attack occurred. Yet the jury could have credited a different bartender’s testimony that Troy left the Peacock at around 12:15 a.m. Resolving the conflict in favor of the prosecution, the jury must have found that Troy left the bar in time to be the assailant. It is undisputed that Troy washed his clothes immediately upon returning home. The court notes this is “plausibly consistent with him being the assailant” but also that he provided an alternative reason for washing his clothes. Ibid. Viewed in the light most favorable to the prosecution, the evidence supports an inference that Troy washed the clothes immediately to clean blood from them.
To be sure, the court’s Jackson analysis relied substantially upon a concession made by the State in state postconviction proceedings that “absent the DNA findings, there was insufficient evidence to convict [Troy] of the crime.” App. 1180. But that concession posited a situation in which there was no DNA evidence at all, not a situation in which some pieces of testimony regarding the DNA evidence were called into question. In sum, the Court of Appeals’ analysis failed to preserve “the factfinder’s role as weigher of the evidence” by reviewing “all of the evidence ... in the light most favorable to the prosecution,” Jackson, supra, at 319, and it further erred in finding that the Nevada Supreme Court’s resolution of the Jackson claim was objectively unreasonable.
IV
Resolution of the Jackson claim does not end our consideration of this case because respondent asks us to affirm on an alternative ground. He contends the two errors “in describing the statistical meaning” of the DNA evidence rendered his trial fundamentally unfair and denied him due process of law. Brief for Respondent 4. Because the Ninth Circuit held that “the admission of Romero’s unreliable and misleading testimony violated [respondent’s] due process rights,” 525 F. 3d, at 797, and in respondent’s view merely applied Jackson (erroneously) to determine whether that error was harmless, he asks us to affirm the judgment below on the basis of what he calls his “DNA due process” claim, Brief for Respondent 35.
As respondent acknowledges, in order to prevail on this claim, he would have to show that the state court’s adjudication of the claim was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. § 2254(d)(1). The clearly established law he points us to is Manson v. Brathwaite, 432 U. S. 98, 114 (1977), in which we held that when the police have used a suggestive eyewitness identification procedure, “reliability is the linchpin in determining” whether an eyewitness identification may be admissible, with reliability determined according to factors set out in Neil v. Biggers, 409 U. S. 188 (1972). Respondent argues that the admission of the inaccurate DNA testimony violated Brathwaite because the testimony was “identification testimony,” 432 U. S., at 114, was “unnecessarily suggestive,” id., at 113, and was unreliable.
Respondent has forfeited this claim, which he makes for the very first time in his brief on the merits in this Court. Respondent did not present his new “DNA due process” claim in his federal habeas petition, but instead consistently argued that Romero's testimony should be excluded from the Jackson analysis simply because it was “unreliable” and that the due process violation occurred because the remaining evidence was insufficient to convict. See App. to Pet. for Cert. 157a (“[Respondent] asserts ... that the DNA evidence was unreliable and should not have been admitted at his trial. If so, then,... the state presented insufficient evidence at trial to prove [respondent] guilty”). In the Ninth Circuit, too, respondent presented only his Jackson claim, and it is, at the least, unclear whether respondent presented his newly minted due process claim in the state courts. Recognizing that his Jackson claim cannot prevail, respondent tries to rewrite his federal habeas petition. His attempt comes too late, however, and he cannot now start over.
* * *
We have stated before that “DNA testing can provide powerful new evidence unlike anything known before.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 62 (2009). Given the persuasiveness of such evidence in the eyes of the jury, it is important that it be presented in a fair and reliable manner. The State acknowledges that Romero committed the prosecutor’s fallacy, Brief for Petitioners 54, and the Mueller Report suggests that Romero’s testimony may have been inaccurate regarding the likelihood of a match with one of respondent’s brothers. Regardless, ample DNA and non-DNA evidence in the record adduced at trial supported the jury’s guilty verdict under Jackson, and we reject respondent’s last minute attempt to recast his claim under Brathwaite. The Court of Appeals did not consider, however, the ineffective-assistance claims on which the District Court also granted respondent habeas relief. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
He denied involvement when a police officer claimed (wrongly) that the police had found his fingerprints in Jane’s bedroom, and he even denied involvement when the sentencing judge told him that acceptance of responsibility would garner him leniency.
Under Nevada law at the time of the trial, the jury, rather than the judge, imposed the sentence for a sexual assault crime if it found the assault resulted in substantial bodily harm. Nev. Rev. Stat. Ann. §200.366(3) (Michie 1992). For an assault resulting in substantial bodily harm, the jury had the option of sentencing Troy to life without the possibility of parole or to life with eligibility for parole after 10 years. § 200.366(2)(a). The jury elected the more lenient sentence. The judge sentenced Troy to life with the possibility of parole after 10 years on a second count of sexual assault, to run consecutively. The Nevada Supreme Court reversed Troy’s conviction for one count of child abuse on double jeopardy grounds, and ordered resentencing on the second sexual assault count. Brown v. Nevada, 113 Nev. 275, 934 P. 2d 235 (1997) (per curiam). On resentencing, the judge imposed the same sentence as before.
The District Court also granted habeas relief on respondent’s claim that he was denied effective assistance of counsel with respect to his attorney’s handling of the DNA evidence and failure to adequately investigate the victim’s stepfather as an alternative suspect. Brown v. Farwell, No. 3:03-cv-00712-PMP-VPC, 2006 WL 6181129, *9-*10 (D Nev., Dec. 14, 2006). The Court of Appeals did not consider those claims on appeal, and they are not now before us.
The Court of Appeals also clearly erred in concluding the Nevada Supreme Court’s decision was “contrary to” Jackson. The Court of Appeals held the Nevada Supreme Court’s decision was “contrary to” Jackson because the Nevada court stated a standard that turns on a “reasonable” jury, not a “rational” one, and that assesses whether the jury could have been convinced of a defendant’s guilt, rather than whether it could have been convinced of each element of the crime. Brown v. Farwell, 525 F. 3d 787, 794-795 (CA9 2008). It is of little moment that the Nevada Supreme Court analyzed whether a “reasonable” jury could be convinced of guilt beyond a reasonable doubt, rather than asking whether a “rational” one could be convinced of each element of guilt; a reasonable jury could hardly be convinced of guilt unless it found each element satisfied beyond a reasonable doubt.
The State has called our attention to cases in which courts have criticized opinions rendered by Professor Mueller in the past. See Brief for Petitioners 53-54. We need not pass on the relative credibility of the two experts because even assuming that Mueller’s estimate is correct, respondent’s claim fails.
The concession was made in the context of proceedings in which respondent argued that competent counsel would have objected to the admissibility of the DNA evidence on a number of grounds — including Romero’s qualifications, chain-of-custody problems, and failure to follow the proper testing protocol — and might have successfully excluded the DNA evidence altogether. See App. 1099-1100.
The Court of Appeals did reason that Romero’s testimony must be excluded from the Jackson analysis on due process grounds. 525 F. 3d, at 797. But that decision was inextricably intertwined with the claim respondent did make in his federal habeas petition under Jackson. It is dear the Ninth Circuit was never asked to consider — and did not pass upon — the question whether the Nevada Supreme Court entered a decision on direct appeal that was contrary to or an unreasonable application of Manson v. Brathwaite, 432 U. S. 98 (1977), or any other clearly established law regarding due process other than Jackson.
The State contends the claim is either not exhausted or procedurally defaulted. The State has objected from the beginning that respondent did not raise a due process claim regarding the reliability of the DNA evidence in state court. See App. to Pet. for Cert. 182a-183a. Respondent consistently answered the State’s exhaustion objection by arguing he presented his Jackson claim in the Nevada Supreme Court. See App. 1521-1526. The Ninth Circuit held respondent exhausted his insufficiency claim. 525 F. 3d, at 793. The court had no occasion to consider whether respondent exhausted any due process claim other than his Jackson claim.
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:
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sc_caseorigin
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158
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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.
DONOVAN et al. v. CITY OF DALLAS et al.
No. 264.
Argued April 22, 1964.
Decided June 8, 1964.
James P. Donovan argued the cause and filed a brief for petitioners.
H. P. Kucera argued the cause for respondents. With him on the brief were Charles S. Rhyne, Brice W. Rhyne and Alfred J. Tighe, Jr.
Mr. Justice Black
delivered the opinion of the Court.
The question presented here is whether a state court can validly enjoin a person from prosecuting an action in personam in a district or appellate court of the United States which has jurisdiction both of the parties and of the subject matter.
The City of Dallas, Texas, owns Love Field, a municipal airport. In 1961, 46 Dallas citizens who owned or had interests in property near the airport filed a class suit in a Texas court to restrain the city from building an additional runway and from issuing and selling municipal bonds for that purpose. The complaint alleged many damages that would occur to the plaintiffs if the runway should be built and charged that issuance of the bonds would be illegal for many reasons. The case was tried, summary judgment was given for. the city, the Texas Court of Civil Appeals affirmed, the Supreme Court of Texas denied review, and we denied certio-rari. Later 120 Dallas citizens, including 27 of the plaintiffs in the earlier action, filed another action in the United States District Court for the Northern District of Texas seeking similar relief. A number of new defendants were named in addition to the City of Dallas, all the defendants being charged with taking part in plans to construct the runway and to issue and sell bonds in violation of state and federal laws. The complaint sought an injunction against construction of the runway, issuance of bonds, payment on bonds already issued, and circulation of false information about the bond issue, as well as a declaration that all the bonds were illegal and void. None of the bonds would be approved, and therefore under Texas law none could be issued, so long as there was pending litigation challenging their validity. The city filed a motion to dismiss and an answer to the complaint in the federal court. But at the same time the city applied to the Texas Court of Civil Appeals for a writ of prohibition to bar all the plaintiffs in the case in the United States District Court from prosecuting their case there. The Texas Court of Civil Appeals denied relief, holding that it was without power to enjoin litigants from prosecuting an action in a federal court and that the defense of res judicata on which the city relied could be raised and adjudicated in the United States District Court. On petition for mandamus the Supreme Court of Texas took a different view, however, held it the duty of the Court of Civil Appeals to prohibit the litigants from further prosecuting the United States District Court case, and stated that a writ of mandamus would issue should the Court of Civil Appeals fail to perform this duty. The Court of Civil Appeals promptly issued a writ prohibiting all the plaintiffs in the United States District Court case from any further prosecution of that case and enjoined them “individually and as a class . . . from filing or instituting . . . any further litigation, lawsuits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds ... or from in any,manner interfering with . . . the proposed bonds . . . The United States District Court in an unreported opinion dismissed the case pending there. Counsel Donovan, who is one of the petitioners here, excepted to the dismissal and then filed an appeal from that dismissal in the United States Court of Appeals for the Fifth Circuit. The Texas Court of Civil Appeals thereupon cited Donovan and the other United States District Court claimants for contempt and convicted 87 of them on a finding that they had violated its “valid order.” Donovan was sentenced to serve 20 days in jail, and the other 86 were fined $200 each, an aggregate of $17,200. These penalties were imposed upon each contemner for having either (1) joined as a party plaintiff in the United States District Court case; (2) failed to request and contested the dismissal of that case; (3) taken exceptions to the dismissal preparatory to appealing to the Court of Appeals; or (4) filed a separate action in the Federal District Court seeking to enjoin the Supreme Court of Texas from interfering with the original federal-court suit. After the fines had been paid and he had served his jail sentence, counsel Donovan appeared in the District Court on behalf of himself and all those who had been fined and moved to dismiss the appeal to the United States Court of Appeals. His motion stated that it was made under duress and that unless the motion was made “the Attorney for Defendant City of Dallas and the Chief Judge of the Court of Civil Appeals have threatened these Appellants and their Attorney with further prosecution for contempt resulting in additional fines and imprisonment.” The United States District Court then dismissed the appeal.
We declined to grant certiorari to review the United States District Court’s dismissal of the case before it or its dismissal of the appeal brought on by the state court’s coercive contempt judgment, but we did grant certiorari to review the State Supreme Court’s judgment directing the Civil Court of Appeals to enjoin petitioners from prosecuting their action in the federal courts and also granted certiorari to review the Civil Court of Appeals’ judgment of conviction for contempt. 375 U. S. 878. We think the Texas Court of Civil Appeals was right in its first holding that it was without power to enjoin these litigants from prosecuting their federal-court action, and we therefore reverse the State Supreme Court’s judgment upsetting that of the Court of Appeals. We vacate the later contempt judgment of the Court of Civil Appeals, which rested on the mistaken belief that the writ prohibiting litigation by the federal plaintiffs was “valid.”
Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other’s proceedings. That rule has continued substantially unchanged to this time. An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases this Court has said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. Princess Lida v. Thompson, 305 U. S. 456, 465-468. In Princess Lida this Court said “where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other.” Id., at 466. See also Kline v. Burke Construction Co., 260 U. S. 226. It may be that a full hearing in an appropriate court would justify a finding that the state-court judgment in favor of Dallas in the first suit barred the issues raised in the second suit, a question as to which we express no opinion. But plaintiffs in the second suit chose to file that case in the federal court. They had a right to do this, a right which is theirs by reason of congressional enactments passed pursuant to congressional policy. And whether or not a plea of res judicata in the second suit would be good is a question for the federal court to decide. While Congress has seen fit to authorize courts of the United States to restrain state-court proceedings in some special circumstances, it has in no way relaxed the old and well-established judicially declared rule that state courts are completely without power to restrain federal-court proceedings in in personam actions like the one here. And it does not matter that the prohibition here was addressed to the parties rather than to the federal court itself. For the heart of the rule as declared by this Court is that:
“. . . where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. . . . The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum.”
Petitioners being properly in the federal court had a right granted by Congress to have the court decide the issues they presented, and to appeal to the Court of Appeals from the District Court’s dismissal. They have been punished both for prosecuting their federal-court case and for appealing it. They dismissed their appeal because of threats to punish them more if they did not do so. The legal effect of such a coerced dismissal on their appeal is not now before us, but the propriety of a state court’s punishment of a federal-court litigant for pursuing his right to federal-court remedies is. That right was granted by Congress and cannot be taken away by the State. The Texas courts were without power to take away this federal right by contempt proceedings or otherwise.
It is argued here, however, that the Court of Civil Appeals’ judgment of contempt should nevertheless be upheld on the premise that it was petitioners’ duty to obey the restraining order whether that order was valid or invalid. The Court of Civil Appeals did not consider or pass upon this question, but acted on the assumption that petitioners were guilty of “wilfull disobedience of a valid order.” 368 S. W. 2d, at 244. (Emphasis supplied.) Since we hold the order restraining petitioners from prosecuting their case in the federal courts was not valid, but was invalid, petitioners have been punished for disobeying an invalid order. Whether the Texas court would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid, we do not know. However, since that question was neither considered nor decided by the Texas court, we leave it for consideration by that court on remand. We express no opinion on that question at this time.
The judgment of the Texas Supreme Court is reversed, the judgment of the Texas Court of Civil Appeals is vacated, and the case is remanded to the Court of Civil Appeals for further proceedings not inconsistent with this opinion.
It is so ordered.
Atkinson v. City of Dallas, 353 S. W. 2d 275 (Tex. Civ. App.).
370 U. S. 939.
Vernon’s Tex. Ann. Civ. Stat. Art. 1269j-5, § 3. See City of Dallas v. Dixon, 365 S. W. 2d 919, 925.
City of Dallas v. Brown, 362 S. W. 2d 372 (Tex. Civ. App.).
City of Dallas v. Dixon, 365 S. W. 2d 919.
City of Dallas v. Brown, 368 S. W. 2d 240 (Tex. Civ. App.).
While in jail counsel Donovan sought habeas corpus from both the Supreme Court of Texas and the United States Court of Appeals for the Fifth Circuit. Both courts denied relief without opinion.
The District Court a week later dismissed as moot the action petitioners had brought in that court against the Supreme Court of Texas to enjoin the Texas court from interfering with the prosecution of the federal-court suit. Donovan v. Supreme Court of Texas, unreported. We denied certiorari sought to review that judgment. 375 U. S. 878.
See, e. g., M‘Kim v. Voorhies, 7 Cranch 279; Diggs v. Wolcott, 4 Cranch 179.
See 28 IT. S. C. § 2283; see also 28 U. S. C. § 1651.
See, e. g., United States v. Council of Keokuk, 6 Wall. 514, 517; Weber v. Lee County, 6 Wall. 210; Riggs v. Johnson County, 6 Wall. 166, 194-196; M‘Kim v. Voorhies, 7 Cranch 279.
Peck v. Jenness, 7 How. 612, 625. See also Central National Bank v. Stevens, 169 U. S. 432; cf. Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, 54, n. 23.
In Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, the Court did not reach the question before us, since the decision there was rested on the special venue provisions of the Federal Employers’ Liability Act. See 36 Stat. 291, as amended, 45 U. S. C. § 56.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
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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
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071. Massachusetts U.S. District Court
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088. New York Western U.S. District Court
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093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
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099. Oregon U.S. District Court
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106. South Dakota U.S. District Court
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125. Wyoming U.S. District Court
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140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Clyde L. HARDY and Lee Roy Ferguson, Appellants, v. UNITED STATES of America, Appellee.
No. 20183.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 14. 1966.
Decided June 19, 1967.
Petition for Rehearing En Banc Denied Oct. 4, 1967.
Mr. Carl V. Lyon, Washington, D. C. (appointed by this court), with whom Mr. Edward G. Howard, Washington, D. C., was on the brief, for appellants.
Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Fahy and Tamm, Circuit Judges.
Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967.
TAMM, Circuit Judge.
This court is again asked to reverse the narcotics laws convictions of these two appellants. This sought after relief is denied.
These appellants were convicted by a jury on a multiple count indictment charging violations of the narcotics laws in a trial conducted by a judge of this court sitting pursuant to 28 U.S.C. § 291(c) (1949), as amended, (Supp. I, 1966), as a District Court judge. They appealed to this court, alleging as a ground for their appeal that their right to a fair trial had been violated by a delay of approximately seven and one-half months between the time of the offenses with which they were charged and their arrests.
On August 20, 1964, a duly constituted panel of this court affirmed their convictions, Hardy & (Ferguson) v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233. That panel, in its carefully considered opinion, concluded that “[t]he delay between alleged act and arrest was not oppressive and the delay between arrest and trial did not violate appellants’ Sixth Amendment rights. Smith v. United States, 1964,118 U.S.App.D.C. 38, 331 F.2d 784 (en banc); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963).” Subsequently, all of the judges of this court considered the appellants’ contentions on this point, and on December 18, 1964, denied appellants’ petitions for rehearing. Certiorari was denied by the Supreme Court on April 26, 1966, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276. Normally and logically this should have terminated the appellate procedure available to these appellants upon the point raised and considered in their initial direct appeal. In June of 1965, however, we considered the case of Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210. In that case, the appellant’s narcotics conviction was reversed. The court, after balancing the interests presented on the record, decided to order a new trial in exercise of “our supervisory responsibility.” That was because Ross had not been arrested until after a purposeful seven months delay following the date when, as an undercover police officer testified without corroboration, he had purchased narcotics from the accused. The panel of this court which considered Ross affirmatively compared it with our earlier opinion involving our-present appellants and readily distinguished the Ross case from that of the present appellants by setting forth in footnote 4 of the cited Ross opinion that “Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government.”
On January 4, 1966, our appellants here filed a motion in the United States District Court pursuant to section 2255 requesting the District Court to vacate and set aside their sentences, again asserting that their sentences were illegal because of an unreasonable delay between their offenses and arrests — which was the ground for their initial appeal to this court — and placing reliance upon our holding in Ross v. United States, swpra, which opinion had, as noted above, been rendered subsequent to the original convictions and appeals. Again, the judge of this court who had originally conducted the trial of the appellants considered their motion and denied it, stating, “ * * * on a full evidentiary record, with the issue of delay in prosecution fully raised, the Court of Appeals affirmed the convictions. Under the circumstances, the motion and the files and records of this case show that the motion must be denied.” Our present appeal stems from that denial.
The appellants are currently barred from collaterally attacking their convictions, because the precise issue now raised was fully raised on their direct appeals and disposed of adversely to them. It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), cert, denied, 368 U.S. 958, 82 S.Ct. 400, 7 L.Ed.2d 389 (1962); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1955), cert, denied, 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762 (1957); VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965); Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Frye v. United States, 337 F.2d 385 (7th Cir. 1964), cert, denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). This point in itself should be completely dispositive of the appeal in this ease, but my learned brother by his dissenting opinion brings into this case factors which require further comment.
Basically, the dissenting opinion proposes that the present panel of this court overrule the prior panel which heard and disposed of the appeal of these appellants on its merit. Obviously, no panel of the court has any right whatsoever to overrule the holdings of another panel of the court. To engage in this process is to bring chaos to the court’s rulings. Were the court to follow this procedure, the decisions of each panel would be valid only on the day of the issuance, and the resulting confusion would obviously destroy the entire value of appellate proceedings.
In addition, however, the dissenting opinion suggests that our present panel surmise that the panel which decided the Ross case, supra, did not mean what it said when it, in turn, was interpreting the facts in the Hardy case.
Another aspect of the dissenting opinion which causes me concern is that it is predicated upon that writer’s rejection of the trial jury’s evaluation of the credibility of witnesses and formulates judicial policy upon the basis of the appellate judge’s own evaluation of that testimony. Without having seen or heard the testimony of the witnesses, the dissenting judge concludes that some of the testimony has “questionable significance.” Indicative of the reliance upon surmise utilized to strengthen the dissenting opinion is the repetitive use of selected conclusionary phrases describing the evidence in the case as “covered with haze,” “apparently * * * not even clear,” “hectic,” etc. The dissenting opinion states that “probably” the police officer’s service on the street “was a very strained and tense period — a clandestine life made more oppressive by constant fear of exposure and perhaps death.” He would then frankly overrule the jury’s on-the-scene evaluation of the credibility of the police officer and the informer and remand for a further hearing on the question of delay. Finally, he concludes by saying that his “confidence * * * is shattered by other facets of this case which indicate that the police took only scanty precautions to insure that they picked the right defendants”, etc.
Words are completely inadequate to emphasize the error of predicating appellate judicial action upon this kind of second-guessing of a jury.
Troublesome also is a further collateral problem underlined by the action proposed in the opinion of my dissenting brother. Although this court has gone far beyond the limits of many other appellate courts in assuring to appellants in criminal cases complete and exacting reviews of their convictions, there must— as a matter not only of logic but of sound judicial administration — be some point of termination in the appellate procedure. Were this panel to ignore all judicial precedent and overrule not one but two prior panels of the court, it would, in effect, be by judicial fiat extending the ever-lengthening processes which constitute Perpetual Appeals. It is popular now to publicly decry the huge backlog of criminal cases awaiting trial in our District Court, and yet the procedure proposed in the dissenting opinion would add to the burden of our trial court the necessity for conducting further hearings in this ease and, I suppose, similar cases. True it is, that this court’s basic responsibility is from time to time to remand individual cases to the District Court for further proceedings. These remands, as a matter of law, of sound judicial administration, and of simple efficiency, should be confined to those meritorious cases in which there exists some unresolved substantial question of law or fact. The questions of law and fact raised by the appellants’ present appeal have been resolved against them heretofore by a judge of this court sitting as a trial judge, by a panel of this court sitting in appellate review of the trial court proceedings, by the court considering the case en banc, by at least a basic review by the Supreme Court, as manifested by that Court’s denial of certiorari, and finally by a second panel of this court in distinguishing appellants’ case from that of the defendant Ross, heretofore identified. It does not require the services of efficiency experts, management surveys, or administrative studies to discover that in a case such as this the court is figuratively spinning its wheels by making no forward progress in dealing with the Judiciary’s serious problems of congestion.
Affirmed.
. “Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction, requires in our view, the reversal of this conviction.” Ross, supra, 121 U.S.App.D.C. at 239, 349 F.2d at 216.
. 28 U.S.C. § 2255 (1959).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
MICHALIC v. CLEVELAND TANKERS, INC.
No. 31.
Argued October 20, 1960.
Decided November 7, 1960.
Harvey Goldstein argued the cause for petitioner. With him on the brief was S. Eldridge Sampliner.
Lucian Y. Bay argued the cause and filed a brief for respondent.
Mr. Justice Brennan
delivered the opinion of the Court.
The petitioner asks damages for personal injuries he allegedly sustained in a shipboard accident while a crew member aboard the respondent’s Great Lakes vessel, the tanker Orion. His complaint alleges respondent’s liability both for negligence under the Jones Act, 46 U. S. C. § 688, and for unseaworthiness under the general maritime law; a claim for maintenance and cure is also alleged. The parties settled the claim for maintenance and cure at the trial, which was before a jury in the District Court for the Northern District of Ohio. Judgment was entered for the respondent on the unseaworthiness and Jones Act claims upon a verdict directed by the trial judge on the ground of insufficiency of the evidence. The Court of Appeals for the Sixth Circuit affirmed. 271 F. 2d 194. We granted certiorari, 362 U. S. 909.
Michalic claims that in a shipboard accident on December 28, 1955, a two-and-one-half-pound wrench dropped on his left great toe. Michalic was afflicted with Buerger’s disease when he joined the Orion three months earlier as a fireman in the engine room. We are informed by the testimony of one of the medical witnesses that Buerger’s disease “is a disease of unknown origin ... it produces a narrowing of the blood supply going to the foot through the arteries, and it runs a very foreseeable course; it is slowly progressive in most cases and leads to progressive loss of blood supply to the extremities involving usually the legs”; for one afflicted with the disease to drop “a hammer on his toe ... is a very serious thing and frequently leads to amputation. . . . Because the circulation is already impaired and the wound will not heal properly, and any appreciable trauma will frequently lead to gangrene.”
Michalic did not report the accident at the time but continued working until January 6, 1956, a week later, when the vessel was laid up for the winter. Meanwhile he treated the toe every night after work in hot water and Epsom salts. He was at his home from January 6 to March 15 and used hot boric acid soaks “practically every day.” He was called back to the Orion on March 15. On April 1, 1956, he reported to the Orion’s captain that “[m]y leg was so bad, so painful, I couldn't take it no more ... I want a hospital ticket.” The captain gave him the ticket after filling out a report in which he stated that Michalic told him that on December 28,1955, “While working with pumpman in pumproom man said he dropped a wrench on his foot and his toe has been sore ever since.” This was the first notice respondent had of any accident.
At the hospital in April, a diagnosis was made of “an infected left great toe nail and gangrene of the left great toe secondary to the Buerger’s Disease.” During the spring three amputations were performed on the left leg, first the great left toe, next the left leg below the knee and then part of the leg above the knee. Medical experts, three on behalf of the petitioner and one for the respondent, differed whether, assuming that the wrench dropped on Michalic’s left great toe on December 28, there was a causal connection between that trauma and the amputations. This plainly presented a question for the jury’s determination, Sentilles v. Inter-Caribbean Corp., 361 U. S. 107, and we do not understand that the respondent contends otherwise.
The basic dispute between the parties is as to the sufficiency of the proofs to justify the jury’s finding with reason that respondent furnished Michalic with a wrench which was not reasonably fit for its intended use. Here a distinction should be noticed between the unseaworthiness and Jones Act claims in this regard. The vessel’s duty to furnish seamen with tools reasonably fit for their intended use is absolute, Mahnich v. Southern S. S. Co., 321 U. S. 96; Seas Shipping Co. v. Sieracki, 328 U. S. 85; The Osceola, 189 U. S. 158; Cox v. Esso Shipping Co., 247 F. 2d 629; and this duty is completely independent of the owner’s duty under the Jones Act to exercise reasonable care. Mitchell v. Trawler Racer, Inc., 362 U. S. 539. The differences are stated in Cox v. Esso Shipping Co., supra:
“One is an absolute duty, the other is due care. Where . . . the ultimate issue . . . [is] seaworthiness of the gear .... The owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew, or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i. e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability.” 247 F. 2d, at 637.
Thus the question under Michalic’s unseaworthiness claim is the single one as to the sufficiency of the proofs to raise a jury question whether the wrench furnished Michalic was a reasonably suitable appliance for the task he was assigned. To support the Jones Act claim, however, the evidence must also be sufficient to raise a jury question whether the respondent failed to exercise due care in furnishing a wrench which was not a reasonably suitable apipliance.
The wrench dropped on Michalic’s foot while he was using it to unscrew nuts from bolts on the casing of a centrifugal pump in the pumproom. He had been assigned this task by the pumpman after the first assistant engineer sent him from the engine room to the pumproom to help ready the pumps for the vessel’s winter lay-up. There were about twenty-five 1%" nuts tightly secured to the bolts on the casing. The pumpman gave him a 1%" straight-end wrench weighing two and one-half pounds and ten to eleven inches long, and also a mallet. The pump was located alongside and some inches below a catwalk, and Michalic had to step down from the catwalk to reach the casing. His task required the gripping of each nut in the claw of the wrench and the hammering of the side of the wrench with the mallet to apply pressure to loosen it. Michalic had removed all but a few of the nuts when he “had hold of a nut” with the wrench and “I hit it [the wrench] with the mallet and it slipped off the nut and came down the side of the pump and hit my big toe. ... Yes, she slipped off the nut on the pump and came down the side of the pump and smashed my big toe.”
Michalic contends that the proofs were sufficient to justify the jury in finding with reason that there was play in the claw of the wrench which prevented a tight grip on the nut, thus entitling him to the jury’s determination of his unseaworthiness claim, and were also sufficient to justify the jury in finding with reason that the respondent negligently furnished him with a defective wrench, thus entitling him also to the jury’s determination of his Jones Act claim. The evidence viewed in a light favorable to him was as follows: The wrench and other pumproom tools were kept in the pumproom toolbox and were used only when the vessel was being prepared for lay-up. The tools were four or five years old. Because of the. danger of fire, the tools, including the wrench and mallet which Michalic used, were made of a special spark-proof alloy. The second mate, who had left the Orion on December 19, testified that the tools were bronze because “Bronze tools are for non-striking.” It was the practice to inspect the pumproom tools and replace worn ones before their use at lay-up time, but the first assistant engineer who testified to the practice did not say this inspection was made in 1955; and the pumpman testified that “It could be” that no one looked at the toolbox for nine months before December 28. The second mate testified that the tools “had been very beaten and battered, perhaps there for some time.” Michalic testified that he noticed when the pumpman gave him the wrench that it was an “old beat-up wrench ... all chewed up on the end.” Michalic said that when he started work “the wrench was slipping off the nuts; it slipped off every one of them.” He “had a hard time loosening them off.” He protested to the pumpman that “This wrench keeps slipping off,” and the pumpman answered “Never mind about that, do the job as best you can.”
The trial judge found the evidence to be insufficient to present a jury question whether the wrench was a reasonably suitable appliance, because “on the theory the grip is worn . . . there is never any mention of the grip in the case . . . .” The Court of Appeals took the same view, saying “There was no evidence that the open or jaw end of the wrench was in any way deficient . . . [t] he fact that the wrench slipped is not evidence that its slipping was the consequence of some condition in the jaw or handle of the wrench.” 271 E. 2d, at 199. We think that both lower courts erred. True, there was no direct evidence of play in the jaw of the wrench, as in Jacob v. New York City, 315 U. S. 752, 754. But direct evidence of a fact is not required. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. Rogers v. Missouri Pacific R. Co,, 352 U. S. 500, 508, n. 17. The jury, on this record, with the inferences permissible from the respondent’s own testimony that inspections were necessary to replace tools of this special alloy because of wear which impaired their effectiveness, could reasonably have found that the wrench repeatedly slipped from the nuts because the jaw of the wrench did not properly grip them. Plainly the jury, with reason, could infer that the colloquy between Michalic and the pumpman, and Michalic’s testimony as to slipping, related to the function of the jaw of the wrench in gripping the nuts and that there was play in it which caused the wrench to slip off. Thus the proofs sufficed to raise questions for the jury’s determination of both the unseaworthiness and Jones Act claims. “It does not matter that, from the evidence, the jury may also with reason* on grounds of probability, attribute the result to other causes . . . .” Rogers v. Missouri Pacific R. Co., supra, p. 506.
The Jones Act claim is double-barreled. Michalic adds a charge of negligent failure to provide him with a safe place to work to the charge of negligence in furnishing him with a defective wrench. However, the case was not tried, nor is it argued here, on the basis that the charge of negligence in failing to provide a safe place to work rests solely on evidence tending to show a cramped and poorly lighted working space, regardless of the suitability of the wrench. On the contrary, Michalic also makes the allegedly defective wrench the basis of this charge, arguing in effect that the described conditions under which he was required to do the work increased the hazard from the use of the defective wrench. Under that theory, the relevance of the testimony is only to the charge of furnishing a defective wrench and the causal connection between that act and his injury. Phrasing the claim as a failure to provide a safe place to work, therefore adds nothing to Michalic’s case, and he was not entitled to have that claim submitted to the jury as an additional ground of the respondent’s alleged liability.
The judgment of the Court of Appeals is reversed and the cause remanded to the District Court for a new trial.
It is so ordered.
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, Mr. Justice Frankfurter is of the view that the writ of certiorari was improvidently granted.
The parties tried the case in the District Court, and argued it here and in the Court of Appeals, as raising issues both of negligence under the Jones Act and unseaworthiness under the general maritime law. We therefore need not be concerned with the confusing language of the complaint and whether it may be read as pleading a claim solely on the theory of negligence.
The trial judge ordered the second mate’s testimony to be stricken from the record when it appeared that the mate left the Orion on December 19. The Court of Appeals nevertheless considered the testimony so far as it concerned the condition of the tools. 271 F. 2d, at 196. We think the action of the Court of Appeals was correct in light of the testimony of respondent’s own witnesses, from which it is reasonable to infer that the tools used on December 28 had been in the toolbox for some time prior to December 19.
The trial judge rested his action partly on a supposed variance between the complaint and the proof at the trial. The complaint alleged that the wrench was “an old defective wrench in an unsea-worthy condition in that the teeth and grip of the wrench were worn and defective.” (Emphasis supplied.) Michalic and all the witnesses at the trial who testified about the wrench described its claw as smooth-faced and without teeth. We see no fatal variance and in any event respondent waived reliance on any by expressly disclaiming surprise at the trial.
The petitioner does not invoke the District Court’s jurisdiction on grounds of diversity of citizenship. Thus there is jurisdiction on the law side of the court of the unseaworthiness claim only as “pendent” to jurisdiction under the Jones Act. Romero v. International Terminal Operating Co., 358 U. S. 354, 380-381. However, the question expressly reserved in Romero, p. 381 — whether the District Court may submit the “pendent” claim to the jury — is not presented by the case. The Orion was a Great Lakes vessel and the petitioner is entitled to a jury trial of his unseaworthiness claim under 28 U. S. C. § 1873. See Troupe v. Chicago, D. & G. Bay Transit Co., 234 F. 2d 253; The Western States, 159 F. 354; Jenkins v. Roderick, 156 F. Supp. 299.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_genresp1
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Joyce E. KEEGAN, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.
No. 84-1113.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Sept. 10, 1984.
Decided Sept. 24, 1984.
Jack I. Kaufman, Allentown, Pa., for appellant.
Edward S. G. Dennis, Jr., U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., E.D.Pa., Beverly Dennis, III, Regional Atty., David L. Hyman, Asst. Regional Atty., Dept, of Health and Human Services, Philadelphia, Pa., for appellee.
Before GIBBONS and GARTH, Circuit Judges, and TEITELBAUM, District Judge.
Hon. Hubert I. Teitelbaum, Chief Judge, United States District Court for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Joyce E. Keegan appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), for a review of a denial of disability benefits under Title II and Title XVI of the Social Security Act. Keegan contends that the district court erred in its interpretation and application of the guidelines for the termination of disability benefits as set forth in Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). We agree and therefore reverse.
I.
Ms. Keegan, born in 1932, and formerly employed as a secretary, applied for disability insurance benefits on June 28, 1976. Her application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. The case was considered de novo by an Administrative Law Judge (AU) who, in a decision dated April 27, 1978, determined that Ms. Keegan was disabled for purposes of the Act, and that her disability commenced on November 8, 1974. The AU concluded, based in part on medical reports from Doctors Farber and Chirieleison, that Keegan was disabled due to a combination of: “(1) rheumatic heart disease, (2) mitral stenosis and insufficiency with the insufficiency predominating, and. (3) anxiety.” Subsequently on April 30, 1978 Ms. Keegan filed for and was granted Supplemental Security Income Benefits.
On June 23, 1981 Ms. Keegan was notified that her disability had ceased as of May, 1981 and that her benefits would be terminated as of July, 1981. The administration in its notice advised Ms. Keegan that her benefits had been initially granted “because of rheumatic heart disease,” Tr. 163, and that the medical evidence indicated that her heart was currently enlarged and that her cardiogram reflected “some non-specific changes consistent with [her] condition.” Further the evidence showed, according to the notice, the absence of symptoms indicative of congestive heart failure, chest pains or fainting spells. Tr. 163. Accordingly, she was advised that “[i]n view of the evidence you have the functional ability to perform your customary occupation as a secretary as it is generally performed in the national economy.” Tr. 163.
Following a hearing which was requested by Ms. Keegan, the AU found that Ms. Keegan was unable to work as a secretary since that activity involved “light exertion” as defined in 20 C.F.R. § 404.1567(b) (1984), but that she retained sufficient residual capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) (1984). The AU determined that Ms. Keegan’s past work experience should be classified as “skilled” as defined in 20 C.F.R. § 404.1568(c) (1984), and that these clerical skills were transferable to sedentary work. 20 C.F.R. § 404.1568(a) (1984).
The AU’s opinion, relying heavily on the report of Dr. Kastenbaum who examined Ms. Keegan for the Administration, conceded that the claimant suffers from rheumatic heart disease with probable mitral insufficiency along with a history of atrial fibrillation, and that this impairment “significantly limits her physical ability to perform basic work related activities.” Tr. 22. The AU stated that Ms. Keegan’s symptoms are aggravated by exertion but relieved by rest and that she was “able to carry out her daily activities without much in the way of symptoms.” This latter observation is apparently taken from Dr. Kastenbaum’s report. Tr. 179.
The Appeals Council refused to review the AU’s opinion, thereby making the Secretary’s determination of non-disability final. Ms. Keegan appealed the decision to the district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982). Each party moved for summary judgment, and the matter was referred to a magistrate for a recommendation. The magistrate reviewed the evidence and recommended that Ms. Keegan’s motion for summary judgment be denied and the Secretary’s motion for summary judgment be granted. In addressing one of Ms. Keegan’s contentions, namely, that the AU made an error of law in determining that her disability had ceased, the magistrate’s report discussed our decision in Kuzmin. The report stated that Kuzmin was satisfied in that Ms. Keegan failed to meet her burden of proof by showing that her condition remained the same as it was at the time of the earlier determination of disability. The magistrate’s report seems to base this conclusion on the lack of additional medical evidence subsequent to the initial determination of disability attributable to the fact that Ms. Keegan was not being treated by any particular physician since 1977.
Ms. Keegan contends that the magistrate’s interpretation of Kuzmin was incorrect. She argues that her testimony constituted evidence of a continuing disability which thereby effectively shifted the burden of proof to the Secretary to present evidence of sufficient improvement in her condition to permit her to undertake “gainful activity.”
The district court adopted the recommendation of the magistrate and granted the Secretary’s motion for summary judgment. The court held that the guidelines for the termination of benefits provided by our decision in Kuzmin were properly followed. First, the court concluded that Ms. Keegan failed to introduce “sufficient evidence that her condition is the same or worse when compared to her condition at the time of the prior finding of disability.” App. 8A at 4. Second, the court concluded that even if a presumption of continuing disability was created by Ms. Keegan, Dr. Kastenbaum’s report was sufficient evidence to enable the Secretary to rebut the presumption of continuing disability.
Since Ms. Keegan's sole ground for appeal rests on the district court’s alleged error in interpreting and implementing our decision in Kuzmin, that is the only issue we need address.
II.
Our inquiry is limited to a determination of whether the Secretary’s final determination of non-disability is supported by “substantial evidence,” 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), which has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In our decision in Kuzmin we addressed the effect to be given to a prior determination of disability on a subsequent decision to terminate benefits. We concluded that both basic principles of fairness and the need to provide the appearance and fact of consistency in the administrative process dictate that “once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling.” Kuzmin, 714 F.2d at 1237. Regarding the nature of proof that must be offered by a claimant, our decisions in both Kuzmin and Daring v. Heckler, 727 F.2d 64 (3d Cir.1984), are instructive. In Kuzmin we stated that a claimant may meet his or her burden by relying on medical evidence previously introduced, supplemented by the claimant’s own testimony of the continuing nature of the disability. Kuzmin, 714 F.2d at 1237. Any doubt which may have persisted after Kuzmin as to the sufficiency of a claimant’s own testimony standing alone to raise the Kuzmin presumption has been resolved in Daring wherein we recognized that this was an adequate means of proof. Thus, once the claimant produces evidence of continuing disability, the burden of proof, or more properly the risk of non-persuasion, shifts to the Secretary to produce evidence that the claimant is capable of undertaking gainful activity in order to rebut the presumption of continuing disability. Kuzmin, 714 F.2d at 1237.
III.
In the present case the district court’s conclusion that Ms. Keegan failed to meet her burden under Kuzmin was in error. The record reflects that in addition to giving testimony of a continuing disability Ms. Keegan did in fact offer additional medical evidence at the hearing itself. Specifically, at the hearing Ms. Keegan introduced medical reports from St. Joseph Hospital, dated April 23, 1982, and records resulting from a visit to the Reading Hospital and Medical Center Emergency Unit. Ms. Keegan had been brought to the hospital by a friend because she complained of weakness, poor appetite and palpitations. Tr. 191. While this additional evidence alone would likely be sufficient to raise the Kuzmin presumption, our decision in Daring makes it clear that her testimony standing alone was sufficient to create the presumption of continuing disability. Daring, 727 F.2d at 69. The Secretary argued in her brief that a leading question asked by Ms. Keegan’s attorney cannot be sufficient even under Daring to satisfy the Kuzmin burden. Brief for Appellee at 10. The exchange referred to by the Secretary was:
BY ATTORNEY:
Q: Mrs. Keegan, 1978, based on the evidence, there was evidence indicating that you experienced frequent fatigue and weakness to the point where you could not do your housework. Okay. Is that still your situation?
A: Yes
Tr. 35.
The Secretary’s argument is without merit for two reasons. First, the Secretary’s objection to the form of the question is inappropriate given the liberal evidentiary rules governing administrative hearings. Section 556(d) of the Administrative Procedure Act provides, “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” The record nowhere reflects the AU’s instructions to Ms. Keegan’s counsel to frame his questions in a certain way. Thus, if the Secretary simply objects to the form of the question, the objection is incorrect. If, on the other hand, the Secretary is arguing that Ms. Keegan’s answer cannot be sufficient to meet her Kuzmin burden because she is only adopting the words of her attorney, the argument must also fail. The question must be fairly read to constitute the attorney’s asking if Ms. Keegan feels any better now than she did at the time of the initial hearing. Given the nature of disability benefit termination proceedings, such a question can hardly be improper.
The other flaw in the Secretary’s argument concerning the “leading question” is that it implicitly assumes that the above referred-to exchange between Ms. Keegan and her attorney is the only portion of her testimony that arguably could furnish a basis for the presumption of continuing disability. This argument is curious particularly since the Secretary’s own brief concedes that the record does contain a “claim” by the claimant that her condition remained the same as it was at the time of the initial hearing. In any case it is clear that Ms. Keegan’s testimony, taken as a whole clearly meets her Kuzmin burden. For example, she testified to difficulty with climbing stairs, and doing housework, weakness in the legs, collapse, and episodic palpitations. Tr. 36-37. These symptoms are undeniably consistent with continuing disability.
Similarly, we can dispose with the Secretary’s argument that Ms. Keegan failed to meet her Kuzmin burden because she testified that she was somewhat less anxious than she had been at the time of the prior hearing, at least to the extent that her former husband was a source of her anxiety. Appellee’s Brief at 10. This is similar to the situation posed in Daring where we concluded that “[t]here is also no basis to support the AU’s reliance on his own impressions that Daring’s relationship with her former boyfriend had been ‘primarily responsible for the claimant’s severe emotional outbursts.’ ” (emphasis in original). Daring, 727 F.2d at 70. In the present case there is similarly no basis for an inference that Ms. Keegan’s husband was the sole cause or even a significant cause of Ms. Keegan’s anxiety. Indeed, it is more likely that Ms. Keegan’s physical condition and the attendant difficulties she experiences in attempting to cope with her illness are the main source of her anxiety. The Secretary’s argument has even less force than it would have if posed in Daring, since in the present case, unlike Daring, the AU’s opinion never mentioned Ms. Keegan’s supposed reduced anxiety in her findings.
The district court also concluded that notwithstanding Ms. Keegan’s failure to meet her burden, the Secretary met her burden of proof to rebut the presumption of continuing disability. In view of our conclusion that Ms. Keegan did offer sufficient evidence to raise a presumption of continuing disability, we must turn to the issue of whether there is substantial evidence to support the Secretary’s findings that Ms. Keegan’s disability had ceased. If we conclude, as the district court did, that the Secretary’s decision was supported by substantial evidence we would have to accept her findings as conclusive. Daring, 727 F.2d at 68. In this regard the district court stated that the Secretary met her burden with Dr. Kastenbaum’s report and the testimony of Ms. Keegan.
As in Kuzmin a comparison between the evidence before the first AU and the termination proceedings record reveals a marked similarity between the two. Kuzmin, 714 F.2d at 1238. For example, the first AU in finding disability considered the medical reports of Drs. Farber, an administration consultant, and Chirieleison. Tr. 142. Dr. Farber concluded that Ms. Keegan was suffering from “rheumatic heart disease, mitral stenosis and insufficiency with the insufficiency predominating ... enlargement of the left atrium and the outflow tract of the left ventricle,” along with “premature atrial and ventricular contractions.” Tr. 107. That report continued
Mrs. Keegan has evidence of strain on her cardiovascular system resulting from her damaged mitral valve. If progression of the strain is to be kept to a minimum she will have to curtail her physical activities. She has too much to care for at home and should really have help with her housework. She could not consider doing work outside of the house and continuing with her housework. If she had a job, it would have to be a sedentary type of occupation, and she would then have to have full time help at home.
Tr. 107 (emphasis added). Dr. Chirieleison stated in his report that Ms. Keegan had a “significant cardiovascular problem with her mitral stenosis and insufficiency causing her to have some evidence of cardiac decompensation in regards to her supraventricular tachycardia.” Tr. 134. He also referred to a stress cardiogram which showed “marked impairment of her functional aerobic impairment [sic].” Tr. 134. Dr. Chirieleison concluded that “Mrs. Keegan with her rheumatic valvular disease is certainly not capable of performing any strenuous activity or indeed any employment which would require her to be under stress.” Tr. 134.
The AU in the second de novo hearing considered all the foregoing along with the medical report of an administration consultant, Dr. Kastenbaum. Dr. Kastenbaum concluded that Ms. Keegan had an enlarged heart, rheumatic heart disease with mitral valve disease which was most likely mitral stenosis, and that she probably has episodes of atrial fibrillation. He classified her as “American Heart Association Class 2 to 3.” Tr. 179. The AU apparently seized upon the portion of Dr. Kastenbaum’s report which stated that Ms. Keegan “is apparently able to carry out her daily activities without much in the way of symptoms, but does get help with her housework by her children” and that she “[h]as not had symptomatic failure for the last four years at least that required hospitalization.” Tr. 179 (emphasis added).
Given the substantially similar clinical findings of Drs. Farber, Chirieleison and Kastenbaum, namely an enlarged heart, rheumatic heart disease, and mitral stenosis, along with Dr. Kastenbaum’s classification of Ms. Keegan as being between American Heart Association 2 and 3, it is apparent that her condition has not improved to the point where she is capable of gainful activity. A person between American Heart Association classes 2 and 3 will experience symptoms at something less than ordinary activity and is only asymptomatic at rest. Further, Dr. Kastenbaum’s statement to the effect that Ms. Keegan is capable of conducting her daily activities “without much in the way of symptoms” was conditioned on her receiving help with her housework from her children. The language suggests that Ms. Keegan might not be able to conduct her daily activities, much less hold down a job, without help with her housework. This is practically identical to the conclusion reached by Dr. Farber, Tr. 107, which was one basis for the initial determination of disability.
The AU also apparently relied on Dr. Kastenbaum’s noting the absence of “symptomatic failure” for four years “at least that required hospitalization.” The non-occurrence of an attack serious enough to require hospitalization is hardly inconsistent with a continuing disability. All three examining physicians and the AU at the termination hearing concurred that Ms. Keegan could be asymptomatic if she remained at rest; and that any symptoms she does experience can be relieved by rest. Therefore, the very nature of her illness is such that if she carefully limits her activity she should not require hospitalization. Hence, the absence of symptoms severe enough to require hospitalization in this case does not constitute substantial evidence of non-disability. In this regard it is also instructive to note that Dr. Kastenbaum considered Ms. Keegan’s condition serious enough to warrant consideration of her as a possible candidate for open-heart surgery. Tr. 179.
Based on the foregoing we conclude that Dr. Kastenbaum’s report did not furnish a basis for rebutting the presumption of continuing disability. We shall briefly consider the district court’s conclusion that Ms. Keegan’s testimony constituted sufficient evidence to enable the Secretary to rebut the Kuzmin presumption.
The district court’s memorandum opinion stated that “[t]he Secretary has met her burden by showing through Dr. Kastenbaum’s report and by testimony from the plaintiff, that the plaintiff is not now disabled.” App. 8A at 4. If the district court is suggesting that Ms. Keegan’s testimony standing alone can furnish the basis for rebutting the Kuzmin presumption, we point out that this issue was not addressed in Kuzmin or Daring. In Daring we made it clear that a claimant could meet her Kuzmin burden by offering her own testimony, and then be given the benefit of a presumption of continuing disability. Once the claimant offered such evidence the Secretary “must present evidence, that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity.” Kuzmin 714 F.2d at 1237. While it is conceivable that a case could arise where the testimony of the claimant alone is sufficient to rebut the Kuzmin presumption of continuing disability, our concerns for “[bjasic principles of fairness as well as the need to provide both the appearance and fact of consistency” lead us to conclude that, at least in most cases, the Secretary should, rely on more than solely the claimant’s own testimony to rebut the presumption of continuing disability. See Early v. Heckler, 743 F.2d 1002 at 1007 (3d Cir.1984) (unrepresented claimant’s equivocal testimony not substantial evidence of improvement). Therefore, given the administration’s power to require the claimant to submit to medical examinations, 20 C.F.R. § 404.1517 (1984), our concerns for fairness and administrative consistency suggest that medical evidence rather than claimant’s testimony standing alone should furnish the basis to rebut the Kuzmin presumption. It is conceivable that in a given case medical evidence will not be sufficient to rebut the presumption but that extremely damaging admissions made by the claimant would be sufficient. Therefore, it is not possible to categorically state that a claimant’s testimony, standing alone, can never constitute sufficient evidence to rebut the Kuzmin presumption, but such cases should be rare.
IV.
In light of the foregoing we will reverse the summary judgment in favor of the Secretary with instructions to remand to the Secretary for reinstatement of benefits commencing August, 1981.
. Ms. Keegan also raised several other objections before the district court, namely: that the ALJ’s conclusion regarding Ms. Keegan’s residual functional capacity was not supported by substantial evidence; that the absence of a vocational expert's testimony along with the ALJ’s taking administrative notice of the existence of sedentary work or that Ms. Keegan could do such work constituted legal error; that Ms. Keegan’s inability to afford a doctor or her refusal to complete a stress test should not provide the basis for a finding of lack of disability. The district court addressed all the arguments except for the final one, finding it unnecessary for the disposition of the case. We will deal, however, only with the objection arguing a misapplication of Kuzmin since that is the sole ground on which Ms. Keegan’s appeal to this court rests.
. Both for purposes of disability insurance and for SSI benefits, disability has been defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A)(1982). A person is disabled within the meaning of these provisions "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1982).
. In Daring we also pointed out that a claimant could meet the Kuzmin burden with evidence of continued episodes of hospitalization or even medical reports relied on by the Secretary. Daring, 727 F.2d at 69.
. The American Heart Association has developed a system of classification which categorizes heart patients in terms of the types of activity which will produce symptoms. The classification scheme states in pertinent part:
Functional Class II: Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain. Functional Class III: Patients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary physical activity causes fatigue, palpitation, dyspnea, or anginal pain.
Diseases of the Heart and Blood Vessels — Nomenclature and Criteria for Diagnosis, N.Y. Heart Association (6th ed. 1964).
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_state
|
39
|
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".
UNITED STATES v. ROHLEDER, et al. (two cases).
Nos. 9093, 9123.
Circuit Court of Appeals, Third Circuit.
Argued May 23, 1946.
Decided Aug. 15, 1946.
J. Gregory Bruce, of Washington, D. C., (John F. Sonnett, Asst. Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., both of Philadelphia, Pa., and Joseph M. Friedman, Chief, War Frauds Civil Section, of Washington, D. C., on the brief), for the United States.
James F. Masterson, of Philadelphia, Pa., (G. Fred Di Bona, of Philadelphia, Pa., on the brief), for defendants.
Before MARIS, GOODRICH and Mc-LAUGHLIN, Circuit Judges.
McLaughlin, circuit judge.
This is a civil suit brought by the United States under Sections 3490-3492 inclusive, and Section 5438 of the Revised Statutes, 31 U.S.C.A. §§ 231-233, 18 U.S.C.A. §§ 80, 82-86, to recover the forfeitures and double damages provided by Section 3490 for submitting false claims for materials supplied as a subcontractor on a Navy shipbuilding project. The government offered no evidence of actual damage at the trial and sought only to recover the statutory forfeitures. The case was tried without a jury. The District Judge found that the defendants had violated Section 3490 as to the sixteen contracts involved. He assessed the statutory penalty of $2,000 against the defendants on each of the contracts. From the judgment entered therein the defendants appeal. The government, claiming that each of the ninety purchase orders in the matter called for a separate forfeiture, cross appeals on that point.
The defendant, Charles F. Rohleder, is a building contractor in Philadelphia; the other defendants were employed by him as his agents and carried on with him the activities described below. Rohleder entered into subcontracts with the Cramp Shipbuilding Company, which was under contract with the Navy Department. This main contract between Cramp and the Navy, dated October 29, 1940 (designated NOD 1550), obligated Cramp to improve its shipyards in Philadelphia by the erection of “Emergency Plant Facilities” preparatory to the building of six light cruisers. The provisions of the contract were that the Cramp Company would, without profit to it, by itself or through contracts with others, make improvements of the value of about $12,000,000. Records and accounts of the project were to be kept by Cramp, and capital for carrying it on was obtained by arrangement with a number of banks. The Navy, represented by the Supervisor of Shipbuilding at the Cramp plant, had broad rights of inspection of work and records during and after construction. The Supervisor’s approval was required in advance for all plans, prices, subcontractors and subcontracts involved. At the completion of the work, a Final Cost Certificate would be presented by Cramp to the Navy, which would then reimburse the company from government funds at 1/60 per month.
On the same date as the main contract, Cramp entered into the first of sixteen subcontracts with Rohleder, eight of which are classed as principal and eight as extension of work projects. The ensuing fifteen were concluded at various times up to September 8, 1941, the date of the last one. These subcontracts were for the actual construction, required by NOD 1550, by Rohleder. They were on a cost-plus-fixed-fee basis, the estimated cost being $1,935,179 and the fixed fee being $63,003. All but two of the subcontracts expressly ■stated that the work involved was let under and was subject to NOD 1550. All but one of the subcontracts required purchases of $100 or over should be approved by Cramp before being placed. All of the subcontracts were approved about the time of execution by the Navy representative.
Before the execution of any of these subcontracts, an authorized Navy representative orally informed some of the Cramp officials that, in order to obtain the ■approval for purchase of material, there would have to be furnished to him in advance, three or more bids together with the vendor’s name and the price submitted by him. This requirement was reduced to memorandum form. The District Court found that the defendants were aware of this requirement and purported to comply with it in connection with purchase orders submitted in their contract work.
The vast majority of such orders submitted by defendants are not questioned. But ninety of them were found by the District Court to contain “three or more bids, one or more of which bids the defendants knew or had cause to know were false, fictitious, and not bona fide competitive bids.” The practice as to these of Roh-leder, the other defendants, or their subordinates, was to obtain from dealers bids higher than the one it was desired to have accepted, with the understanding that these bids were not seriously made on the part of the dealers. The ninety items so treated were included in work under all sixteen of the contracts. The bids involved were forwarded by Rohleder to the Cramp Company and approved without suspicion by it. They were sent to the Navy representative who upon inspection and in reliance on the facts presented gave the final approval, also without suspicion. Rohleder was then provided with copies of the correspondence between Cramp and the Navy, indicating the approved bid. This method was followed for each of the ninety items, and for each of them Rohleder was reimbursed by Cramp. In some instances, the material upon which the bids were given had been installed by Rohleder before the approval procedure got under way. The prices thus obtained were reflected in the Final Cost Certificate submitted by Cramp and paid by the United States through the Navy Department under the terms of NOD 1550.
The Court below also found that “No evidence of any damage suffered by the United States as a result of the alleged illegal acts was offered,” and that there “is no evidence * * * that the government would have saved any money had genuine * * * bids * * * been submitted.” It appears in the record that the defendants were acquitted of the related criminal action in 1943.
The defendants contend that there can be no recovery under Section 3490 unless actual damages, pecuniary or proprietary, are alleged and proved. They argued that as Section 5438 stood at the time it was incorporated into Section 3490, it required pecuniary loss in order that a conviction be sustained. The question is not wholly free from doubt. It is somewhat complicated by the circumstances that Section 5438 was amended in 1918 among other particulars not presently important by inclusion of the phrase “or for the purpose and with the intent of cheating or swindling or defrauding the Government of the United States.” United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616, was decided under the 1918 amendment and the Supreme Court specially stressing the above amendment language held that actual loss to the government was necessary to sustain a conviction. Capone v. United States, 7 Cir., 51 F.2d 609, and United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200, are much to the same effect.
Section 5438 was further amended in 1934. The important changes for our purposes were, the dropping of the above quoted part of the 1918 amendment and the addition of the clause “in any matter within the jurisdiction of any department or agency of the United States * * That last amendment was considered by the Second Circuit in United States v. Mellon, 96 F.2d 462, on the contention that there could be no violation of the statute without pecuniary loss to the government. The Court said 96 F.2d at page 463: “Before the amendment of 1934 the scope of the statute was, indeed, so limited. United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616; United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200.” It is particularly noted that the Court is there referring to Section 5438 with the 1918 “defrauding” phrase relied on in the Cohn opinion and not to the original Section 5438 as it was incorporated into Section 3490. Love v. Mantz, 8 Cir., 72 F.2d 631, does not answer the question either, as the Court there applied the rule of the above cases under the 1918 amendment to indicate that pecuniary loss was a vital element of the claim.
Closest to the.present situation is United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, rehearing denied 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163. That was a civil suit by an informer under Sections 3490-3494, 31 U.S. C.A. §§ 231-235. The District Judge correctly held that it must rest on violations of Section 5438 as that section read when it was incorporated in Section 3490. United States v. Hess, D.C.W.D.Pa., 41 F.Supp. 197, 205. This is conceded by both sides in this appeal. In the Hess case, just as here, the government asked for forfeitures on items, among others,- for which no damage was shown. The District Judge said as to this, 41 F.Supp. at page 218: “The next reason urged by .defendants for a new trial is that the court erred in refusal of defendants’ 9th point, which reads as follows: '9. There can be no recovery of any penalty or ■ forfeiture on account of any project in which no actual damages have been shown.’ Section 3490, R.S., expressly provides for a penalty of $2,000, ‘and, in addition, double the amount of damages which the United States may have sustained.’ This makes it plain that regardless of damages sustained, the United States would still be entitled to recover the penalty. This point refers to instances where the United States withheld payments on account of the discovery of the fraud, so that no actual .damage was shown. However, that would not preclude the United States from recovery of the penalty prescribed by Section 3490, R.S.”
The judgment of the District Court including the forfeitures • allowed for eight projects as to which no damage had been proven was affirmed by the Supreme Court, supra. The no damage forfeitures were not referred to specifically in the opinion but the concluding paragraph thereof did say [317 U.S. 537, 63 S.Ct. 388], “We have examined the other contentions of the respondents and approve of the disposition of them by the courts below.” The petition for rehearing specially called the attention of the Court to the circumstances surrounding the particular eight projects; nevertheless the petition was denied as stated.
In view of the attitude toward just such claims as are before us, by the Supreme Court in the Hess litigation, we conclude that Section 3490 embracing Section 5438 as the latter was when incorporated into Section 3490, permits recovery of a forfeiture thereunder without actual damage being proven.
Defendants’ second point is that the defendant Rohleder-had no knowledge that the bids were-fictitious. It is not challenged by the defendants that in connection with many of the- ninety purchase orders the material had already been purchased or contracted for and actually used, prior to Rohleder’s sending in the supposedly competitive bids. A letter in evidence admittedly dictated by Rohleder but never mailed, as the Trial Judge said, “indicates that he was familiar with and had himself engaged in the practice of giving complimentary bids in order to comply with contract requirements for competitive bidding.” The Trial Court further said, “The bids were obtained by his [Rohleder’s] agents for his sole benefit and to the extent that their conduct imposes liability, he is answerable for it.” Defendants question this last quoted finding as not in accord with established principles of agency law but cite no cases to sustain the proposition. Under the circumstances the Court’s statement was proper. United States v. Van Riper, 3 Cir., 154 F.2d 492. Even without the agency inference there is sufficient evidence to warrant the District Judge deciding that Roh-leder knew the bids being submitted were not bona fide.
The defendants next urge that the Navy had no. authority to demand competitive bids. The main contract between the Navy and Cramp, Article 1, Section 3, Paragraph 5, provided: “Provided, however, that none of the items of the Emergency Plant facilities shall be acquired or constructed unless the approval of the Department (which for this purpose shall be represented by the Supervisor of Shipbuilding at the plant of the Contractor) shall have first been obtained to the plans and specifications therefor, the purchase price thereof, the subcontractor, supplying or constructing the same, and the terms of any subcontract made by the Contractor therefor.”
On October 28,1940, Lieutenant Bishop, acting for the Navy, requested competitive bids. The Navy-Cramp contract was entered into on October 29, 1940, and that, same day the first Cramp-Rohleder agreement was approved. While there was no competitive bidding clause in this or any of the later agreements, all but two of them contained statements that the work under them was subject to the Navy-Cramp contract. The procedure of submitting competitive bids was accepted by Rohleder and ostensibly followed by him throughout his work. There was no indication from him to the Navy or to Cramp that would in any way suggest otherwise. It was testified to that such method was fundamental Navy procedure. Considering the nature of the cost-plus-fee contract Rohleder had, the day to day differentiation in amounts of labor and materials required and the necessity that Rohleder’s prices had to be approved by the Supervisor of Shipbuilding under the terms of the parent agreement, we agree with the Trial.Judge that the Navy requirement of competitive bids was reasonable practice and within the scope of the above quoted paragraph of the Navy-Cramp agreement.
Defendants’ final point is devoted to excusable circumstances surrounding the undertaking. They refer to the tremendous time pressure, saying that such irregularities as existed were not caused by any ulterior motive but in the all prevailing effort to get the job accomplished. Undoubtedly this element was present. They refer to the defendant Rohleder having completed his part of the rehabilitation of the Cramp Shipyard speedily at three-fifths of the average overhead and to the satisfaction of all concerned. There is considerable force in these ássertions, but we cannot go along with the defendants when they designate the common sense Navy method of insisting on three genuine competitive bids as “red tape.” Nor can we condone the scheme of paying lip service to the requirement while secretly consumating the ninety purchase orders without actually obtaining such bids. There is testimony in the record that the Supervisor of Shipbuilding had the authority to and on occasion did waive the requirement for competitive bidding when the faots warranted it, but from all that appears no such request was ever made by the defendants.
The government cross appeal is concerned with the question of the number of forfeitures allowed! The District Court awarded the statutory forfeiture of two thousand dollars on each of the eight main contracts and on the eight subcontracts. The government insists that there should be a forfeiture declared on each of the ninety purchase orders. United States ex rel. Marcus v. Hess (supra) is also illuminating on this problem. In that case there were fifty-six distinct P.W.A. projects involved and many hundreds of false forms. On the judgment in favor of the plaintiff, the latter urged that the penalty attach not only to the fifty-six items but to each false affidavit certificate submitted by the defendants. The defendants argued that the entire fifty-six projects constituted but one act. The District Court found that each project was a single claim. The Supreme Court in its-opinion 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443, upheld this, saying: “The District Court concluded that the lump sum in damages should be assessed for each separate P.W.A. project. Petitioner does not object to this decision and we conclude that under the circumstances of this case each project can properly be counted separately.”
The government argues that in Hess the fraud was in the procurement of the contracts whereas in the situation confronting us the fraud arises from the means taken to obtain the approval of the Supervisor of Shipbuilding. That difference does exist but is not enough to avoid the impact of the Hess opinion. There the Supreme Court said 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443: “The incidence of fraud on each additional proj ect is as clearly individualized as is the theft of mail from separate bags in a post office.” Nor do we think that it can be fairly substantiated that the District Court in limiting the forfeiture to the sixteen contracts overlooked the second and third clauses of Section 5438. The fraud was committed with respect to the contracts. The purchase orders were part of those contracts and not definite projects in themselves. They are analogous to the great number of spurious forms in the Hess case which were absorbed into their respective projects. The grouping by the Trial Judge of the ninety purchase orders under their respective contracts generally corresponds to the distinctions made in United States ex rel. Marcus v. Hess, supra. It is reasonable and has a sound basis in the record.
Affirmed.
Section 3490 of the Revised Statutes, 12 Stat. 696, reads as follows: “See. 3490. Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title ‘CRIMES,’ shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such an act, together with the costs of the suit; and such forfeiture and damages shall be sued for in the same suit.-’
Section 5438 of the Revised Statutes, 12 Stat. 696, as it appeared at the time of its incorporation in Section 3490, reads as follows: “Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, * * * every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.”
In that one the amount was $200.
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_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.
Bobby BATTLE, et al. Plaintiffs/Appellants, v. Park ANDERSON, et al., Defendants/Appellees, and United States of America, Plaintiff/Appellee-Intervenor.
No. 84-1026.
United States Court of Appeals, Tenth Circuit.
April 16, 1986.
Louis W. Bullock, Cooperating Atty., ACLU, Tulsa, Okl., for plaintiffs/appellants.
Robert A. Nance, Asst. Atty. Gen., Oklahoma City, Okl. (Michael C. Turpén, Atty. Gen. of Oklahoma, was also on brief), for defendants/appellees.
Michael A. Carvin, Atty., Dept, of Justice, Washington, D.C. (William Bradford Reynolds, Asst. Atty. Gen., Charles J. Cooper, Deputy Asst. Atty. Gen., Brian K. Landsberg and Dennis J. Dimsey, Attys., Dept, of Justice, Washington, D.C., Gary L. Richardson, U.S. Atty., were also on brief), for plaintiff/appellee-intervenor.
Before HOLLOWAY, Chief Judge, and BARRETT and DOYLE, Circuit Judges.
The Honorable William E. Doyle heard the argument in this appeal but did not participate after December 31, 1985, in this matter.
HOLLOWAY, Chief Judge.
I
This § 1983 class action was initially commenced by inmate Bobby Battle, pro se, challenging various conditions of confinement at the Oklahoma State Penitentiary in 1972. The district court held that conditions in the Oklahoma prison system violated the Eighth Amendment proscription against cruel and unusual punishment. The subsequent history of the controversy is detailed in the opinions cited in the margin.
In April, 1982, the district court entered an order that defendants “should have and do hereby have the authority indefinitely but not permanently to double-cell where necessary,” 708 F.2d 1523 at 1526, following increases in the Oklahoma prison population. In October, 1982, the district court issued an opinion following an evidentiary hearing on its orders that had previously been entered. The court stated that although it would not conclude from the evidence that the system had become unconstitutional in its operation, it was clearly in a state of decline. 708 F.2d at 1539. The court continued jurisdiction over the case to insure that the Oklahoma prison system did not revert to an unconstitutional condition. Id. The court ordered that a statement of penal policy and detailed plan of action be filed.
This court affirmed, one judge dissenting. Battle v. Anderson, 708 F.2d 1523 (10th Cir.1983), cert. dismissed, 465 U.S. 1014, 104 S.Ct. 1019, 79 L. Ed.2d 248 (1984). The majority of the panel held that the district court did not abuse its discretion in continuing its jurisdiction to assure compliance with past decrees and to prevent a recurrence of unconstitutional conditions despite its finding that the system was then currently constitutional. Id. at 1537-40.
The instant eontrovery concerns events following that decision. In compliance with the district court’s order, the State filed a detailed “Plan of Measures to be Taken to Assure Continued Constitutionality of Oklahoma’s Prisons” in June, 1983, and in July the State filed a supplement to the Plan. In September, 1983, the court held an evidentiary hearing on the State’s Plan and the State’s motion to dismiss the case. Judge Bohanon recused in December, 1983, and the case was assigned to Chief Judge Seay. Following review of a portion of the record, he entered the order on appeal herein on December 30.
The court concluded that “since October 1982 to the present date the conditions of confinement in the Oklahoma prison system are constitutional and are not cruel and unusual punishment.” X Jt.App. 237. The court noted that there had been “disturbances, problems, and inadequacies in the Oklahoma prison system since the court’s last findings.” Id. at 235. The court noted that there were four subjects of previous court orders still found to be inadequate and not in compliance — racial integration, access to the courts, equal protection guarantees for women, and vacating for human habitation the East and West Cellhouses of the Oklahoma State Penitentiary at McAlester. Id.
The court concluded nevertheless that the system was constitutional and “each area of continued violation has been specifically addressed by the State and is subject to a specifically planned remedy.” Id. The court found that the State legislature and prison officials were aware of and sensitive to the constitutional requirements and that the court was satisfied “that there is no reasonable expectation that unconstitutional practices will recur in the conditions of confinement in the Oklahoma prison system.” Id. at 238. Concluding that it was mindful of its obligation to enforce the constitutional rights of all persons, the court granted defendants’ motion to dismiss the case in its entirety. However, the court concluded that “[a]ll of this court’s orders and injunctions as modified heretofore remain in full force and effect.” Id. at 239.
In May, 1984, the district court denied a motion by plaintiffs to stay the dismissal order. Responding to a complaint that the judge had not had the full record to review, the judge noted that he had had four of seven transcripts from the September hearing for review before entering the order; that he had all the transcripts containing plaintiffs’ case-in-chief; and that he had earlier had the transcript volume with the testimony of the Governor and the Director of the Corrections Department. In denying the request for a stay, the court concluded that “[ajfter a careful review and study of the entire transcript, the court finds no reason to change its order of December 30, 1983, and the court reaffirms that order.” Id. at 248. The court stated that “[ajlthough the court noted problems of compliance in certain areas, those areas were not held to be constitutional violations.” Id. (emphasis in original).
On April 25, 1984, a panel of this court denied an application by the plaintiffs for a stay of the dismissal order, pending appeal. On May 25, 1985, plaintiffs filed a further motion for a stay of the dismissal order, pending appeal, contending that the State was housing inmates in the East and West Cellhouses in violation of the district court’s order of May, 1979. The State responded that the inmates were temporarily housed in those cellhouses on May 13,1985, as a result of a disturbance at another State prison, and that the inmates were removed from them on May 28. Plaintiffs did not dispute these facts but did request that this court stay the dismissal order nevertheless. We denied the renewed application for a stay, stating that we would “consider the propriety and scope of the district court’s December 30, 1983, order in our disposition of the pending appeal in this cause.” A motion to reconsider that ruling was filed, but in view of our disposition of the case the motion becomes moot.
We turn now to the appellate arguments challenging the correctness of the district court’s order of dismissal.
II
Plaintiffs challenge the district court’s holding that the prison system is constitutional. They argue that the system is unconstitutional with respect to access to the courts, racial integration, and equal protection guarantees for women — areas that the district court found to be “inadequate and not in compliance” with previous court orders. Plaintiffs also contend that the Oklahoma prison system, considering the totality of the circumstances, is in violation of the Eighth Amendment.
A.
Access to the courts
Plaintiffs attack the defendants’ reliance on inmate law clerks to provide meaningful access to the courts. Brief of Appellant 40-42; Reply Brief of Appellants 18-20. We have previously noted, however, that “[u]nder Bounds, the State is free to make a choice between affording law library facilities on a reasonable basis, or the alternative means of having available counsel on a reasonable basis.” Ward v. Kort, 762 F.2d 856, 860 (10th Cir.1985). The district court’s dismissal order stated:
The court finds that the mandated mín-imums of adequate library facilities has not yet been met. Bounds v. Smith, 430 U.S. 817 [97 S.Ct. 1491, 52 L.Ed.2d 72] (1976). However, testimony from Mr. Larry Meachum, Director of the Department of Corrections of Oklahoma, at the September 1983 hearing, indicates and assures this court that libraries will be fully stocked and that plaintiffs have and will be assured continued access to courts.
X Jt.App. 235. In this connection, the defendants’ Plan stated that the State intended “to continue their current approach to access to courts by providing both law libraries and trained inmate law clerks to assist inmates in framing legal issues for presentation to the court.” X R. 113; see id. at 113-14.
There is record evidence that the Department of Corrections has a large or small library at each of the prison facilities. Inventories were admitted in evidence as Defendants’ Exhibits 29, 30, and 31 respecting the major law libraries at the Oklahoma State Penitentiary, the Mabel Bassett Correctional Center, and the Joseph Harp Correctional Center. V Jt.App. 1041. Each library has a supervisor. ■ The fact finder appointed by the district court had found an “appalling lack of essential legal books and reference materials at both major and minor law libraries.” VIII Jt.App. 119. However, we note that the inventories do list a substantial volume of basic materials in the libraries. See, e.g., Defendants’ Exhibit 29 (containing extensive listing of law books at Oklahoma State Penitentiary Library). Further, defendants’ Plan represented to the court that “the Department is continually updating and supplementing its law library inventories.” X JtApp. 114.
In light of the testimony, the documentary evidence, and the representations accepted by the district court, we hold that the finding of the court that there was no constitutional violation in this respect is not in error.
B.
The claim of racial discrimination
Earlier practices of racial discrimination in the Oklahoma prison system were chronicled in Battle v. Anderson, 376 F.Supp. at 410-11. In that opinion, the district court made conclusions of law on these practices, id. at 420-21, and entered orders designed to remedy the discrimination. Id. at 428-30. The State has endeavored since those orders to comply with the constitutional requirements.
In the instant proceeding there are numerous allegations of racial discrimination and segregation in the Oklahoma prison system, including discrimination in job assignments, dining hall seating, and cell assignments. Numerous examples are contained in the fact finder’s March 1983 final compliance report, VIII Jt.App. 25-43, and in the arguments and record citations in the briefs of the plaintiffs-appellants in this phase of the controversy. Brief of Appellants 15-16, 43; Reply Brief of Appellants 12-14. The State and the United States as intervenor argue that the evidence supports a finding of nondiscrimination. Brief of State Defendants-Appellees 101-02; Brief for the United States as Appellee 26-28.
In addition, the plaintiffs-appellants argue that the trial court did not address these issues in the December 30, 1983 order of dismissal. In that regard, we note that the district court did make the following findings and conclusions respecting this claim of racial discrimination:
Racial integration of the occupants of double cells is found to be almost non-existent in the Oklahoma prison system. Racial integration of cells is strictly by voluntary action only. However, a commitment by defendants to fully integrate is contained in the Defendants' Plan. The court finds the Defendants' Plan to be of sufficient remedial effect and has previously, in this order, approved and ordered its adoption.
X Jt.App. 235.
In view of the findings quoted above, we cannot agree with the plaintiffs-appellants that the trial court did not address the racial discrimination claim at all. Nevertheless, because of the several distinct questions clearly raised by the fact finder’s findings and the specific issues joined by the parties, we must agree that the findings of the district court are not sufficient under Rule 52(a), Fed.R.Civ.P. We cannot perform our appellate function without adequate findings and conclusions by the trial court on this issue of fundamental constitutional importance. Battle v. Anderson, 614 F.2d 251, 256 (10th Cir.1980); Squirtco v. Seven-Up Co., 628 F.2d 1086, 1902 (8th Cir.1980). Without expressing any view on the validity of the constitutional claim of racial discrimination, we hold that the findings and conclusions thereon are not sufficient due to the sharp conflict on the several claims of specific discriminatory treatment not addressed by the trial judge.
Accordingly, with respect to this claim of racial discrimination, the judgment of dismissal must be vacated and the case remanded on that claim for such further proceedings as the district court deems proper. In view of the intervening time lapse it may well be desirable that further evidence on this claim be received. After the further proceedings which the trial court finds proper are held, the district judge should then find the facts specially and state separately his conclusions thereon in detail, dealing with the various claims of racial discrimination in accordance with Rule 52(a).
C.
The claim of sex discrimination
Under the Equal Protection Clause, the plaintiffs-appellants argue vigorously that women inmates in the Oklahoma prison system are subjected to discrimination in conditions of confinement, job assignments, training programs, mental and medical health services, and recreation. These were objections made by the plaintiffs to deficiencies in the fact finder’s final compliance report. X Jt.App. 58-61. The specific claims arise from the fact that the State in a stipulation had agreed not to discriminate against inmates on various grounds, including sex, and had agreed further to provide equal access to various programs and work assignments. Brief of Appellants 22; Brief for the United States as Appellee 30 n. 22.
The district court’s order of dismissal contains the following discussion of this issue:
The court finds that equal protection guarantees for women inmates are inadequate in terms of programs, medical care, and exercise. However, Director Meachum testified there is a $62,000.00 current special appropriation for women’s programs and detailed the specific remedies outlined in the Defendants’ Plan. The court finds the proposed measures will continue constitutionality.
X Jt.App. 236.
With respect to the claim of violation of the Equal Protection Clause in the treatment of women inmates, we feel that the findings are not inadequate. The trial court specifically found inadequacies in terms of programs, medical care, and exercise. We feel that the remaining claims of inadequate housing were thus implicitly rejected. Furthermore, the trial judge specifically identified the testimony which he credited, that of Director Meachum. His testimony concerning a $62,000 current special appropriation for women’s programs was identified. Moreover, the court concluded that the program laid out by Director Meachum would be constitutionally sufficient. We note that Director Mea-chum’s testimony explained the reason for not having an intermediate health unit for the Mabel Bassett facility in the Oklahoma City area. He pointed out that they had a psychiatrist assigned to the Mabel Bassett facility addressing the mental health needs of women. VII Jt.App. 95-97.
On consideration of the evidence relied on by the plaintiffs, the evidence cited by the trial judge, and the resolve shown in the testimony of Director Meachum to solve the problem, we cannot say that the findings and conclusions of the trial judge on this constitutional claim were in error.
D.
The Eighth Amendment claim
Plaintiffs further vigorously challenge the findings and conclusions of the district court which rejected their claim that the totality of the circumstances in the Oklahoma prison system amounts to cruel and unusual punishment in violation of the prohibition of the Eighth Amendment. More specifically, they seriously complain about overcrowding, food and kitchen facilities, ventilation, educational and training programs, medical and mental health services, and the occupation temporarily of the East and West Cellhouses at the Oklahoma State Penitentiary in violation of the May 4, 1979 order of Judge Bohanon.
In connection with this constitutional claim and the detailed complaints made, the district court’s findings and conclusions against the plaintiffs were as follows:
[T]he court finds that management problems exist in the Oklahoma system. Problem areas can be determined in food preparation and service, maintenance of equipment and facilities, distribution of clothing and essential supplies, and inmate idleness. These management problems exist despite the extremely professional staff of the Oklahoma prison system. These problems are found to be primarily a direct result of increases in prison population.
Unfortunately, there will always be problems and inadequacies. We are considering a large, confined population of convicted felons, not a nursery school. As noted by Judge Barrett, “The Rhodes majority observed that harsh or restrictive conditions of confinement are part of the punishment criminal offenders justly receive because the Constitution does not mandate comfortable prisons. Justice Powell wrote that ‘To the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.’ 452 U.S. [337] at p. 347 [101 S.Ct. 2392 at p. 2399, 69 L.Ed.2d 59].” Battle v. Anderson, supra at page 1535.
The court finds, considering the totality of circumstances, these inadequacies, problems, and shortcomings do not constitute cruel and unusual punishment under the test of Rhodes. Rhodes v. Chapman, supra at page 347 [101 S.Ct. at page 2399]. The court finds no evidence at this time to show that the plaintiffs’ present conditions of confinement in the Oklahoma prison system have changed from one of constitutionality to unconstitutionality. Thus, the court finds that since October 1982 to the present date the conditions of confinement in the Oklahoma prison system are constitutional and are not cruel and unusual punishment.
X Jt.App. 236-37.
For reasons we will outline generally, from our review of the record testimony and exhibits, and from the arguments about the record evidence by plaintiffs, we conclude that the district court’s findings were not clearly erroneous, that the conclusions drawn were supported by the findings and record, and that the determination of the court to dismiss the cause in its entirety, retaining in full force and effect the prior orders and injunctions against constitutional violations, was not in error.
We have noted that there are specific complaints concerning conditions of confinement, including overcrowding, food and kitchen facilities, ventilation, educational and training programs, medical and mental health services, and the temporary occupancy of the East and West Cellhouses. See Brief of Appellants 4-22, 30-36. However, the ban on cruel and unusual punishment prohibits conditions that “involve the wanton and unnecessary infliction of pain, [or are] grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); see Whitley v. Albers, — U.S. -,---, 106 S.Ct. 1078, 1082-86, 89 L. Ed.2d 251 (1986). Although prison inmates may not be deprived of the “minimal civilized measure of life’s necessities, ... conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are .restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399.
A little over two years ago a panel of this court agreed that the overall conditions of the Oklahoma prison system at that time were constitutional. Battle v. Anderson, 708 F.2d at 1533, 1537. We have considered the plaintiffs’ complaints and the arguments in their briefs concerning the evidence in this subsequent case and are not convinced that the findings of the district court are clearly erroneous. The State defendants and the intervenor United States have persuasively argued that the evidence of record does not demonstrate conditions of confinement constituting cruel and unusual punishment under the strict standard of Rhodes v. Chapman. See Brief of Defendants-Appellees 2-88; Brief for the United States as Appellee 15-23.
We note one item in particular, the complaint that facilities at the Oklahoma State Penitentiary were not air-conditioned. The complaint concerning the heat was covered by the testimony of Mr. Hutto. The testimony was that the new housing units at the Oklahoma State Penitentiary were air-conditioned. IV Jt.App. 597. The East and West Cellhouses were not air-conditioned, but as discussed below, they were vacated, except for limited emergency use, in compliance with the orders of Judge Bohanon.
With respect to the East and West Cell-houses, the May 4, 1979 order of Judge Bohanon was that the State no longer house inmates at those East and West Cell-houses due to the inadequate facilities there. In the dismissal order of December 30, 1983, the district court noted that the State was not in compliance with that order, but was satisfied from the assurances of Director Meachum and Governor Nigh that the cellhouses would be vacated as soon as feasible. X Jt.App. 236.
On May 25,1985, plaintiffs filed a motion for a stay pending appeal in this court stating that inmates were being housed in the East and West Cellhouses in violation of the May 4, 1979 order. The State responded to that motion, representing that the inmates were placed in the cellhouses on May 13, 1985, as the result of a disturbance at another state prison and that the inmates were removed from these East and West Cellhouses on May 28. Plaintiffs did not challenge these representations.
There was a further motion for a stay filed December 27, 1985, in which the plaintiffs again represented that some inmates had been placed into the East and West Cellhouses. However, this was again related to a riot problem and the defendants informed the plaintiffs’ counsel that the forty-three inmates housed in the East Cell-house following the riot were all removed by January 6, 1986. See Response of the United States to Appellants’ Motion to Reconsider Order Denying Stay Pending Appeal 3. There was no dispute of those facts concerning the removal of the inmates from the East Cellhouse after the problem of temporary occupancy. We therefore conclude that the complaint concerning the East and West Cellhouses is not supported in our record, and we are not persuaded that these temporary emergency uses of the cellhouses should be held a constitutional violation.
In sum, we are not persuaded by the arguments of the plaintiffs and the evidence that the findings of the district court that there was no violation of the Eighth Amendment were clearly erroneous. In addition, we are not convinced that there was an abuse of discretion by the district court in determining to dismiss the cause as he did, retaining in force and effect the prior orders and injunctions against constitutional violations. The majority in Battle v. Anderson, 708 F.2d at 1537, concluded that “a court should exercise supervisory power over the suit until it can say with assurance not only that eighth amendment violations do not presently exist but there is no reasonable expectation that unconstitutional conditions will recur.” In dealing with the various issues before him, the district judge concluded that he was satisfied that the defendants intended permanent compliance with constitutional conditions in the Oklahoma prison system. X Jt.App. 232, 234-37. The Memorandum Opinion and Order stated that “this court finds that it is now satisfied that there is no reasonable expectation that unconstitutional practices will recur in the conditions of confinement in the Oklahoma prison system.” Id. at 238.
We are convinced that the district court’s conclusion was based on findings supported by the record and that the determination to dismiss in these circumstances was not in error or an abuse of discretion.
III
As noted, there was a motion for a stay of the district court’s dismissal order filed on May 25, 1985, by the plaintiffs. This court denied that motion, as noted, stating that we would consider the propriety and scope of the district court’s December 30, 1983 order of dismissal in our disposition of the pending appeal. On December 27, 1985, the plaintiffs filed a motion to reconsider that order denying the May 25, 1985 motion for a stay. Because of the disposition we are making in this opinion, we find that motion now to be moot.
In addition, on February 4, 1986, the plaintiffs filed a motion for partial remand for the district court to make an appropriate award of attorney’s fees pendente lite. In view of the fact that this court was proceeding to disposition of the case, we have deferred a ruling on that motion. Since we are making a partial remand of the case, the plaintiffs will have the opportunity to have the district court consider a further application of attorney’s fees when those proceedings on remand occur. The trial judge should entertain any such motion with those proceedings.
IV
Accordingly, for the reasons stated we make the following determinations and order as follows:
1. The order of dismissal of December 30, 1983, by the district court, which retained in full force and effect the previous orders and injunctions protecting the rights of the plaintiffs against constitutional violations, is AFFIRMED except with respect to the claim of racial discrimination discussed in Part II-B of this opinion. The plaintiffs may by further proceedings in the district court seek relief from any violations of those previous orders and injunctions protecting their constitutional rights.
2. The order of dismissal of December 30, 1983, is VACATED with respect to the claim of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment; as discussed in Part II-B of this opinion, the cause is REMANDED to the district court for further proceedings and the entry of findings and conclusions by the district court on that constitutional claim as directed by this opinion.
IT IS SO ORDERED.
. Since the district court held that conditions in the Oklahoma prison system violated the Eighth Amendment's proscription of cruel and unusual punishment in Battle v. Anderson, 376 F.Supp. 402 (E.D.Okla.1974), the litigation concerning constitutional compliance has been ongoing. See Battle v. Anderson, 447 F.Supp. 516 (E.D. Okla.), aff'd, 564 F.2d 388 (10th Cir.1977); Battle v. Anderson, 457 F.Supp. 719 (E.D.Okla.1978), remanded for further hearings, 594 F.2d 786 (10th Cir.1979); Battle v. Anderson, 614 F.2d 251 (10th Cir.1980); Battle v. Anderson, 708 F.2d 1523 (10th Cir.1983) (per curiam), cert. dismissed, 465 U.S. 1014, 104 S.Ct. 1019, 79 L.Ed.2d 248 (1984); see also Battle v. Anderson, 541 F.Supp. 1061 (E.D.Okla.1982) (award of attorneys’ fees).
. The constitutional right of access to the courts has been found to rest on the guarantees of the Due Process Clauses of the Fifth and Fourteenth Amendments. See Ward v. Kort, 762 F.2d 856, 858 (10th Cir.1985).
. In addition to the inventories of materials at the libraries, we note that the handbook "Civil Procedure for Inmate Legal Research Assistants” itself covered basic principles on federal habeas corpus with chapters on the exhaustion doctrine, procedural default, issues cognizable, pleadings, preliminary procedure, and eviden-tiary hearings. Statutory materials and summaries on various cases from the Supreme Court and the courts of appeals on habeas proceedings were also included.
. The plaintiffs argue that they were denied due process when Chief Judge Seay entered his order of dismissal after having received only four of seven transcripts of the hearing held earlier before Judge Bohanon. Judge Seay had before him at the time of his dismissal the transcripts of the plaintiffs’ entire case in chief, among other things, and the testimony of Governor Nigh and Director Meachum, and the exhibits were apparently available, including those we have cited earlier concerning access to the courts. In addition, in his ruling a few months later on the motion to stay his order, which was denied, the judge stated that he had at that time reviewed the entire transcript of all the proceedings before Judge Bohanon.
. As noted, the district court here expressly stated that "[a]ll of this court’s orders and injunctions as modified heretofore remain in full force and effect." X Jt.App. 239. This is in accord with the principle that "[i]t has long been settled that the court’s power to grant injunctive relief survives discontinuance of the illegal conduct. E.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1952)." Battle v. Anderson, 708 F.2d at 1538 n. 4. If the district court had intended any dissolution of the prior orders, its order "should have contained a definite provision for the dissolution” of those provisions. Tucker v. Baker, 185 F.2d 863, 865 (5th Cir. 1950). We are convinced that it is unmistaken-bly clear that the orders and injunctions protecting the inmates against constitutional violations, as previously modified, were in no way intended to be relaxed and that they remain in full force and effect.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
CARFELO v. DELAWARE, L. & W. R. CO.
No. 69.
Circuit Court of Appeals, Second Circuit.
Dec. 7, 1931.
Evans, Hunt & Bees and William Gr. Walsh, all of New York City, for plaintiff-respondent.
Douglas Swift, of New York City, for defendant-appellant.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge
(after stating the facts as above).
This appeal brings up for review the ruling of the court in denying the defendant’s motion for a directed verdict and some questions relating to the charge.
It was, of course, necessary to take the evidence in the light most favorable to the plaintiff in passing upon the motion for a directed verdict. This required that it be taken for granted that there was not only no lookout on the defendant’s engine and no warning or signal given from it to the plaintiff, but that he was crossing the track on a path over it which the defendant knew was there, knew was used by its section men in connection with their work, and that the use the plaintiff was making of it when injured was so closely connected with interstate commerce as to be a part of it. We do not think, however, that the evidence either required or permitted the court to assume that the engine was being operated at excessive speed. The evidence was virtually all to the effect that it was not. The testimony of one witness who- based his opinion on what may fairly be called a glimpse of it as it was moving, not past, but away from him, can hardly be called more than a scintilla, and the plaintiff did not even ask to have that question submitted to the jury. See Hammond v. Crawford (C. C. A.) 66 F. 425.
It is obvious that the rights of the plaintiff and the liability of the defendant must be determined from the standpoint of an employee engaged in performing the work of an employer in interstate commerce, for this action is based wholly on the Federal Employers’ Liability Act. The duty the defendant may have owed to others at the time and place the plaintiff was injured cannot be brought to bear upon the decision of this case. He must win or lose solely on an application of the law which applies to- employees of the class to- which- he belonged. Chesapeake & Ohio Ry. Co. v. Mihas, 280 U. S. 102, 107, 50 S. Ct. 42, 74 L. Ed. 207.
So the problem simmers down to whether or not a section man, working on the track of his employer at the point where a known path, used by all who will, crosses that track, is entitled to be looked out for and warned of the presence of such engines or trains moving toward him as the employer runs along the track. As no custom to give any warning to section men at this place was shown, the rights and duties of these parties are controlled by the law as laid down in the case of Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914. which is binding upon us and which we followed in Biernacki v. Pennsylvania R. R. Co. (C. C. A.) 45 F.(2d) 677. See, also, Reynolds v. N. Y. O. & W. Ry. Co. (C. C. A.) 42 F.(2d) 164; Toledo, St. Louis & Western R. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758. We believe that, in so-far as eases like Southern Ry. Co. v. Smith (C. C. A.) 205 F. 360, and Central R. R. Co. of N. J. v. Sharkey (C. C. A.) 259 F. 144, are to the contrary, they have been overruled. Now a section man must rely upon his own vigilance to protect himself from injury by engines and trains his employer operates over tracks on which he may be engaged in the line of his duty without being looked out for by those in charge of such engines or trains or given any warning by them unless he is seen. That is one of the risks he assumes when he undertakes this kind of employment. The fact that he happened to be at a path across the track when he was injured did not decrease this risk which the plaintiff assumed, for he must be treated as still at work when there-, else this action would not lie at all, and when so considered we are not free to relieve him of the assumption of risk of not being seen or warned while at work even though the defendant would, perhaps, have been in duty bound to have seen and warned others at that time and place. C. & O. Ry. Co. v. Mihas, supra; C. & O. Ry. Co. v. Nixon, supra. Since the motion for a directed verdict should have been granted, it is unnecessary to consider exceptions to the charge,'
Judgment reversed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_9-3
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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 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 "miscellaneous".
AFA DISTRIBUTING CO., INC., Appellant, v. PEARL BREWING COMPANY, Appellee.
No. 72-1939.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1972.
Decided Jan. 3, 1973.
Alan Kay, Washington, D. C. (Mc-Cormack & Bregman, Washington, D. C., and Stanley Perry, Alexandria, Va., on brief), for appellant.
Laidler B. Mackall, Washington, D. C. (Steptoe & Johnson, Washington, D. C., and Alfred D. Swersky, Alexandria, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
CRAVEN, Circuit Judge:
This litigation is a thus far unsuccessful effort by a local Virginia beer distributing company (AFA) to prevent a Texas manufacturer of beer (Pearl) from terminating an exclusive franchise to distribute Country Club Malt liquor in northern Virginia. The complaint recites that there is jurisdiction under 28 U.S.C. § 1331 but is silent as to what, if any, federal question is presented. That is not enough. Wright, Law of Federal Courts 59-62 (2d ed. 1970). There is jurisdiction, however, under 28 U.S.C. § 1332 by reason of diversity of citizenship.
The parties agree that but for a recently enacted statute of Virginia (Va.Code Ann. § 4-80.2) Pearl was free to terminate the beer distributing franchise without cause. They quite understandably disagree as to the application and meaning of the statute. The district judge construed the statute favorably to Pearl and dismissed AFA’s complaint. We think he should have abstained to permit state court interpretation of this exceedingly difficult and incredibly ambiguous statute. We therefore vacate the district court’s decision interpreting the statute, but affirm, for other reasons, the dismissal of the complaint.
AFA is a distributor of beer in northern Virginia, and Pearl is a Texas brewery engaged in the manufacturing and sale of beer. Since July 3, 1962, AFA has had an agreement with Pearl by which AFA has distributed certain of Pearl’s products. On May 1, 1972, Pearl terminated the agreement and gave the .exclusive right to distribute its products to another distributor of beer in the northern Virginia area. Accepting the plaintiff’s allegations as true for the purposes of the motion to dismiss, the termination of AFA’s distributorship was without just cause and without notice to AFA. AFA’s primary contention is that the termination was in violation of Va.Code Ann. § 4-80.2.
Va.Code Ann. § 4-80.2, enacted in 1964, provides in relevant part:
(a) It shall be unlawful for any wholesaler, vintner, winery or brewery, or any officer, agent or representative of any winery or brewery:
(2) Unfairly, without due regard to the equities of such wholesaler, vintner, winery or brewery and without just cause or provocation, to cancel or terminate any agreement or contract, written or oral, or the franchise of such wholesaler, vintner, winery or brewery existing on January one, nineteen hundred sixty-four, hereafter entered into, to sell the beer or wine manufactured by the winery or brewery.
Section 2 of this statute has an obvious ambiguity. The participial phrase, “existing on January one, nineteen hundred sixty-four,” may modify either “franchise” or “such wholesaler, vintner, winery or brewery.” The district court in interpreting the statute read “existing on January one, nineteen hundred sixty-four” to modify “wholesaler, vintner, winery or brewery” and, “hereafter entered into” to modify “any agreement or contract.” Thus, under the district court’s interpretation, distributorship arrangements entered into before January 1, 1964, would not be protected by the statute and breweries established after January 1, 1964, would not be subject to the statute. Since the district court found that the statute applied only to contracts entered into after January 1, 1964, and since the contract between Pearl and APA was entered into in 1962, the court dismissed the action.
It would make better sense, we think, to read “existing on January one, nineteen hundred sixty-four, hereafter entered into” as modifying “agreement or contract.” As thus interpreted the statute would apply to present and future distributorship agreements and provide protection for distributors which the legislature apparently intended. This result can be reached if the comma between “sixty-four” and “hereafter” is interpreted to mean “or.” The district judge, doubtless advertent to Virginia case law, felt that the statute could not be so interpolated in light of Virginia rules of statutory construction. In Johnson v. Barham, 99 Va. 305, 38 S.E. 136 (1901), the Virginia Supreme Court of Appeals stated:
It is safer in a case which admits of doubt, where the court finds itself at all involved in conjecture as to what was the legislative intent, that the particular object which may reasonably be supposed to have influenced the legislature in the particular case should fail of consummation than that courts should too readily yield to a supposed necessity, and exercise a power so delicate and so easily abused as that of adding to or taking from the words of the statute. In such a case, as has been said by courts in a different connection, “to doubt is to be resolved.”
38 S.E. 137-138. Yet, the Virginia Supreme Court of Appeals has on occasion added a word to a statute. Hutchings v. Commercial Bank, 91 Va. 68, 20 S.E. 950 (1895).
Perhaps, also, the district judge was motivated by a wish to avoid a constitutional question. If the statute is interpreted to apply to contracts entered into before its effective date, the constitutionality of the statute under the Contract Clause, U.S.Const, art. I, § 10, might be brought into question. Because of the ambiguity in the statute and because of an inchoate constitutional question, we think the district court should have applied the abstention doctrine. In this case, whether we adopt the district court’s interpretation or give the statute a construction we find more sensible, our decision, although the law of this case, would necessarily be a forecast as to future interpretations.
In this situation a federal court is asked to decide an issue which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court.
Railroad Comm’n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941) (citations omitted).
We recognize that mere difficulty in determining state law does not in itself justify a federal court’s declining to exercise its jurisdiction. Compare Martin v. State Farm Mut. Auto Ins. Co., 375 F.2d 720, 722 (4th Cir. 1967), with United Services Life Ins. Co. v. Delaney, 328 F.2d 483 (5th Cir.), cert. denied, Paul Revere Life Ins. Co. v. First National Bank, 377 U.S. 935, 84 S.Ct. 1335, 12 L.Ed.2d 298 (1964). Congress has adopted the policy of opening the federal courts to litigants in diversity cases, and we cannot close the door to the federal courts merely because such a case involves a difficult question of state law. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). See, Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481 (1959); Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv.L.Rev. 604 (1967). Thus this judge-made doctrine of abstention may be applied only where there are special circumstances. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). See also, Wright, Law of Federal Courts 196-208 (2d ed. 1970); IA Moore’s Federal Practice ff 0.203 [1] (1965).
Present in this case is such a special circumstance justifying abstention. Should the state courts determine, as the court below held, that Va.Code Ann. § 4-80.2 applies only to contracts entered after the statute’s effective date, no Contract Clause question would arise.
In the application of the abstention doctrine,
no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.
Harrison v. NAACP, 360 U.S. 167, 176, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959). The well-settled doctrine that a federal court will not anticipate a question of constitutional law and the special weight that doctrine carries in the maintenance of harmonious federal-state relations requires that a district court stay its proceedings until a potentially controlling state-law issue is authoritatively put to rest. United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962); Bag-gett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) .
Since in this case the state law is unclear and a state court decision could conceivably avoid a constitutional decision, abstention is appropriate. See, Fornais v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970).
Although the failure of the parties to raise the abstention issue either at trial or on appeal is entitled to some consideration, the public policy underlying the application of the abstention doctrine is so strong that we notice its application ex mero motu. That abstention is not urged by a party does not mean that the point lacks merit. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1970). It is true that abstention costs in terms of time and money. But in the relatively rare instances of application it is not too high a price to pay for federalism. Clay v. Sun Ins. Office, Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960); Chicago, B. & Q. R. R. v. North Kansas City, 276 F.2d 932 (8th Cir. 1960).
An additional justifying factor here is the invocation of federal diversity jurisdiction by a corporate plaintiff (AFA) itself a citizen of Virginia. Thus in requiring AFA to first proceed in state court to obtain an authoritative interpretation of the statute there is “little basis in fact for xenophobia — no reason to fear a provincial locally oriented” court. Crawford v. Courtney, 451 F.2d 489, 492 (4th Cir. 1971).
[W]hen a person’s involvement with a state is such as to eliminate any real risk of prejudice against him as a stranger and to make it unreasonable to heed any objection he might have to the quality of its judicial system, he should not be permitted to choose a federal forum, but should be required to litigate in the courts of the state.
ALI, Study of the Division of Jurisdiction between State and Federal Courts 2 (1969 Official Draft). See also, Hearings on S. 1876 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 92d Cong., 1st Sess., pt. 1 at 2 (1971).
Another special circumstance justifying abstention is the peculiarly exclusive dominion of the states over the control of distribution and sale of alcoholic beverages. Such control has been wholly preempted by the states. See California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Peripheral and episodic federal court interpretations of state statutory schemes of control are not desirable and could be harmful.
It is not easy to decide whether on remand the district court should retain jurisdiction. Since one of our reasons for ordering abstention is to avoid possible interference with the state scheme of alcoholic beverage control, the case comes dlose to Burford-type abstention. Moreover, as we have explained, the federal question lurking within the statute arises only as a defense contention. Defendant Pearl is apparently content with state adjudication of that question, and plaintiff, AFA, has not pleaded the question and could not do so. Anticipation is not allowed. Wright, Law of Federal Courts 60 (2d Ed. 1970).
The rule as to dismissal or retention of jurisdiction, once rigid, Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577 (1956), is now somewhat flexible. Zwickler v. Koota, 389 U.S. 241, 244 n. 4, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). We think it the “better practice” on the facts of this case to require the parties to submit all questions to the state court.
The decision of the district court interpreting the statute will be vacated. Its order of dismissal, however, will be
Affirmed.
. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer:
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songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
Milton E. SPARKS, Plaintiff-Appellant, v. GILLEY TRUCKING COMPANY, INCORPORATED, Defendant-Appellee.
No. 92-1547.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 2, 1992.
Decided April 21, 1993.
James Collins Landstreet, II, Cowan & Landstreet, Elizabethton, TN, argued, for plaintiff-appellant.
Frank Parrott Graham, Roberts, Stevens & Cogburn, P.A., Asheville, NC, argued, for defendant-appellee.
Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
NIEMEYER, Circuit Judge:
The principal issue presented in this appeal is whether evidence of prior speeding tickets may be admitted under Federal Rule of Evidence 404(b) to prove negligence in an automobile tort case. We hold that in the circumstances of this case it was prejudicial error for the district court to have admitted such evidence, and we therefore vacate the judgment and remand the case for a new trial.
I
Late on a June afternoon in 1987, Milton E. Sparks was driving up a mountain near the North Carolina-Tennessee border in his red Corvette when a logging truck came down the mountain in the opposite direction. After the vehicles passed by each other, Sparks lost control of his car, hit a tree, and sustained serious personal injuries. Sparks sued Gilley Trucking Company, the owner of the logging truck, alleging negligence, and Gilley Trucking filed a defense contending that Sparks’ own negligence contributed to the accident. At trial Sparks testified that the truck was traveling in the middle of the road and that, in trying to avoid a collision, he ran off the road and hit a tree. The driver of the truck testified to different facts, stating that Sparks was driving at an excessive rate of speed in the middle of the road and lost control when he swerved to avoid hitting the truck.
To advance its theory that Sparks was speeding and, indeed, racing at the time of the accident, Gilley Trucking was allowed to introduce, over Sparks’ objection, evidence that Sparks had been convicted of speeding on several prior occasions. Relying on Federal Rule of Evidence 404(b), the district court admitted the evidence “to show intent, preparation, plan or motive to race or speed on the day in question.” This evidence formed a principal part of Gilley Trucking’s defense that on the day of the accident Sparks was contributorily negligent. Gilley Trucking also presented testimony of the investigating police officer who estimated Sparks’ rate of speed immediately before the accident at 70 m.p.h.
The jury found that negligence of both drivers contributed to the accident and, as required by North Carolina law, rendered judgment for the defendant trucking company. On appeal Sparks contends that the district court erred in admitting both the evidence of prior speeding tickets and the expert testimony.
II
The principal issue turns on whether the fact that Sparks was convicted of speeding on prior occasions had a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The analysis begins with the recognition that Federal Rule of Evidence 404(a) provides that “[ejvidence of a person’s character or a trait of character” is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and therefore it is excluded under the same principle as is reflected in Rule 403 — any probative value is “substantially outweighed by the danger of unfair prejudice.” Accordingly, Rule 404(b) provides that evidence of prior “crimes, wrongs or acts” may be admitted to prove a relevant fact except when it is offered solely to “prove the character of a person in order to show action in conformity therewith.” Rule 404(b) is thus a rule of inclusion that permits the admission of prior acts if probative to an aspect of the case and not offered merely to establish a character trait which would encompass the type of conduct in question. See United States v. Masters, 622 F.2d 83, 85-86 (4th Cir.1980).
Thus, when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element. A criminal defendant, for example, cannot deny knowledge of drug trafficking or an intent to traffic in drugs and at the same time preclude the admission of the government’s evidence of prior occasions when he willingly trafficked in drugs. We have held repeatedly that when intent to commit an act is an element of a crime, prior activity showing a willingness to commit that act may be probative. See, e.g., United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991); United States v. Rawle, 845 F.2d 1244, 1247-48 (4th Cir.1988). The Supreme Court pointed out in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the importance that prior act evidence may have in deciding a disputed issue, “especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. at 685, 108 S.Ct. at 1499. Thus when evidence of prior acts is probative of a fact material to the case, Rule 404(b) permits its admission even when it may tend also to show a character trait. To protect against the danger of prejudice the court should give a limiting instruction under Rule 105 if one is requested and must, in any event, weigh the prejudicial effect under Rule 403.
In a common law negligence case, however, the issue is generally not the defendant’s state of mind. Rather the factfinder must determine whether the defendant was acting as a reasonable person would have acted in similar circumstances. In this case Gilley Trucking was attempting to prove that Sparks was speeding or racing at the time of the accident and therefore driving in a negligent manner that contributed to the resulting accident. Yet proof of negligence does not require a showing of intent or plan, the stated purposes for which the prior speeding tickets were admitted by the district court. Moreover, prior acts of speeding alone do not establish intent because a speeding violation does not depend on intent. A speeding ticket may be issued regardless of the defendant’s state of mind. Indeed, accidental or inadvertent speeding may result in the issuance of a speeding ticket. See N.C.Gen. Stat. § 20-141.
If Gilley Trucking was attempting to show that Sparks was racing at the time of the accident, it took upon itself the unnecessary burden of showing that Sparks was speeding intentionally to show that he was driving negligently. While an intentional act does require proof of a state of mind, for which prior acts may be admissible, a showing of prior acts of speeding without more is still not relevant to establishing this state of mind. Gilley Trucking made no effort to show that any prior speeding was deliberate or was in any way related to racing. Indeed, Sparks’ explanations tend to suggest that the conduct resulted more from inadvertence. For example, he said, “As far as I know every speeding ticket I’ve ever had has been out on interstate road traveling back and forth to and from jobs.”
Nor did Gilley Trucking present any foundation for the theory that-the prior tickets revealed a “plan” or a “motive” to race on the day of the accident, and none of the evidence about the tickets discloses preparation to speed or race on that day.
The relatively extensive evidence of the several prior speeding tickets in this case tended to show at most a trait about Sparks, that he tended to speed, and to suggest that because he speeded on prior occasions, he was speeding at the time of the accident. This purpose for using the prior acts evidence, however, is the one specifically prohibited by Rule 404, as we have already observed, and the evidence should not have been admitted.
While it was error to have admitted evidence of the prior speeding tickets in the circumstances of this case, a new trial is warranted only if admission of the evidence was not harmless error. See 28 U.S.C. § 2111 (judgments not to be set aside on appeal based on “errors or defects which do not affect the substantial rights of the parties”); Fed.R.Evid. 103(a) (same). In the circumstances of this case we do not find the error harmless. When the speeding tickets are excluded, the evidence presents close factual issues. Sparks and the Gilley Trucking driver testified to different versions of the events leading to the accident. There was conflicting testimony and physical evidence of Sparks’ speed. Against the backdrop of this stand-off, the jury heard detailed evidence about several prior occasions when Sparks was convicted of speeding, and this evidence thus became an important aspect of Gilley Trucking’s presentation to the jury. Cf. Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 154-55 (1st Cir.1992) (finding erroneous admission of speeding tickets not harmless error). We cannot determine that the evidence did not adversely affect the outcome of the case. See Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir.1984) (error not harmless when court could not be certain refusal to admit evidence did not prejudice outcome). Accordingly, we conclude that a new trial is necessary in this case.
Ill
Sparks also contends that the district court erred in allowing Officer D.K. Doster, who investigated the accident, to testify as an expert witness for Gilley Trucking that immediately prior to the accident he estimated Sparks’ speed at 70 m.p.h. Sparks argues that the court should not have admitted the expert testimony of Officer Doster as it was without sufficient factual basis, in particular because Officer Doster did not measure the friction of the highway surface in question before applying a coefficient of friction to the length of the skid marks when estimating Sparks’ speed.
While resolution of this issue is not necessary to the immediate disposition of this appeal, we address it because the testimony of Officer Doster may again be offered at a new trial. Expert witnesses may testify whenever special knowledge will assist the trier of fact. Fed.R.Evid. 702. Whether to allow expert testimony and whether a potential witness possesses sufficient education and training to render an expert opinion are questions committed to the discretion of the trial judge, and our review determines only whether this discretion has been abused. See Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1187 (4th Cir.1990). Here, the district court concluded that expert testimony would help the jury evaluate the physical evidence and consider how fast Sparks was driving. The court accepted Officer Doster as an expert on rates of speed after it was presented with evidence of his experience in accident investigation and reconstruction as a member of the North Carolina Highway Patrol and the Franklin Police Department and his training through formal instruction. We do not find that the court abused its discretion.
Sparks argues, however, that even if Officer Doster was properly accepted as an expert, he should not have been allowed to give his opinion on speed without having conducted a proper coefficients of friction test because without it he lacked the necessary factual basis to form a useful opinion. Sparks is correct in noting that a court may refuse to allow a generally qualified expert to testify if his factual assumptions are not supported by the evidence. See Eastern Auto Distrib., Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329, 337-38 (4th Cir.1986). In this case, however, the objection relates more to how Officer Doster formed his opinion than to the facts upon which it was based. Officer Doster was the first officer on the scene. He saw the skid marks, their length, and their direction, and he observed the highway surface, the condition of the car, and the tree it hit. Moreover, all of the facts he considered in making his estimate were in evidence. Whether he properly performed a test goes more to the weight to be attached to his opinion than to its admissibility. See, e.g., Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (finding that failure to include certain variables in a regression analysis went to the probative weight of the analysis, not to its admissibility). The proper methods for addressing the perceived shortcoming in Officer Doster’s technique were cross-examination and the presentation of rebutting expert testimony, and Sparks availed himself of both methods.
Thus, while we find no abuse of discretion by the district court in admitting the expert testimony, we nevertheless vacate the judgment and remand for a new trial because the admission of evidence of prior speeding tickets was improper and prejudicial.
REVERSED AND REMANDED.
. In cases where character itself becomes relevant to an issue, however, it may be proved by prior acts. See Fed.R.Evid. 405(b).
. We are careful to note that our opinion is limited to the circumstances of this case and should not be construed to establish a per se rule that would require the exclusion of a party's driving record under different circumstances. See, e.g., United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984) (admission 'of prior drunk driving convictions not error in vehicular death case as prosecutor must show malice&emdash;awareness of risk of drinking and driving), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985).
. In contrast, we need not address Sparks' final assignment of error&emdash;that the district court erred in refusing to allow Earl Street to testify for Sparks as a rebuttal witness to impeach the testimony of the Gilley Trucking Driver. The court ruled that Sparks' notification of the witness to Gilley Trucking was untimely, and to permit the witness to testify would be "unfair surprise” without giving Gilley Trucking "time to look into it.” By our new trial order, this issue is rendered moot.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_lcdispositiondirection
|
A
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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
INSURANCE CORPORATION OF IRELAND, LTD., et al. v. COMPAGNIE DES BAUXITES DE GUINEE
No. 81-440.
Argued March 23, 1982
Decided June 1, 1982
White, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 709.
Edmund K. Trent argued the cause for petitioners. With him on the briefs was Thomas P. Lawton III.
Cloyd R. Mellott argued the cause for respondent. With him on the brief were Dale Hershey, Robert W. Doty, Robert L. Byer, and Jordan S. Weltman.
Justice White
delivered the opinion of the Court.
Rule 37(b), Federal Rules of Civil Procedure, provides that a district court may impose sanctions for failure to comply with discovery orders. Included among the available sanctions is:
“An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.” Rule 37(b)(2)(A).
The question presented by this case is whether this Rule is applicable to facts that form the basis for personal jurisdiction over a defendant. May a district court, as a sanction for failure to comply with a discovery order directed at establishing jurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Petitioners urge that such an application of the Rule would violate due process: If a court does not have jurisdiction over a party, then it may not create that jurisdiction by judicial fiat. They contend also that until a court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the ground for a sanction. In our view, petitioners are attempting to create a logical conundrum out of a fairly straightforward matter.
I
Respondent Compagnie des Bauxites de Guiñee (CBG) is a Delaware corporation, 49% of which is owned by the Republic of Guinea and 51% is owned by Halco (Mining) Inc. CBG’s principal place of business is in the Republic of Guinea, where it operates bauxite mines and processing facilities. Halco, which operates in Pennsylvania, has contracted to perform certain administrative services for CBG. These include the procurement of insurance.
In 1973, Halco instructed an insurance broker, Marsh & McLennan, to obtain $20 million worth of business interruption insurance to cover CBG’s operations in Guinea. The first half of this coverage was provided by the Insurance Company of North America (IÑA). The second half, or what is referred to as the “excess” insurance, was provided by a group of 21 foreign insurance companies,14 of which are petitioners in this action (the excess insurers).
Marsh & McLennan requested Bland Payne to obtain the excess insurance in the London insurance market. Pursuant to normal business practice
“[i]n late January and in February, 1974, Bland Payne presented to the excess insurer [petitioners] a placing slip in the amount of $10,000,000, in excess of the first $10,000,000. [Petitioners] initialed said placing slip, effective February 12, 1974, indicating the part of said $10,000,000 each was willing to insure.” Finding 27 of the District Court, 2 App. 347a.
Once the offering was fully subscribed, Bland Payne issued a cover note indicating the amount of the coverage and specifying the percentage of the coverage that each excess insurer had agreed to insure. No separate policy was issued; the excess insurers adopted the INA policy “as far as applicable.”
Sometime after February 12, CBG allegedly experienced mechanical problems in its Guinea operation, resulting in a business interruption loss in excess of $10 million. Contending that the loss was covered under its policies, CBG brought suit when the insurers refused to indemnify CBG for the loss. Whatever the mechanical problems experienced by CBG, they were perhaps minor compared to the legal difficulties encountered in the courts.
In December 1975, CBG filed a two-count suit in the Western District of Pennsylvania, asserting jurisdiction based on diversity of citizenship. The first count was against INA; the second against the excess insurers. INA did not challenge personal or subject-matter jurisdiction of the District Court. The answer of the excess insurers, however, raised a number of defenses, including lack of in personam jurisdiction. Subsequently, this alleged lack of personal jurisdiction became the basis of a motion for summary judgment filed by the excess insurers. The issue in this case requires an account of respondent’s attempt to use discovery in order to demonstrate the court’s personal jurisdiction over the excess insurers.
Respondent’s first discovery request — asking for “[cjopies of all business interruption insurance policies issued by Defendant during the period from January 1, 1972 to December 31, 1975” — was served on each defendant in August 1976. In January 1977, the excess insurers objected, on grounds of burdensomeness, to producing such policies. Several months later, respondent filed a motion to compel petitioners to produce the requested documents. In June 1978, the court orally overruled petitioners’ objections. This was followed by a second discovery request in which respondent narrowed the files it was seeking to policies which “were delivered in . . . Pennsylvania ... or covered a risk located in . . . Pennsylvania.” Petitioners now objected that these documents were not in their custody or control; rather, they were kept by the brokers in London. The court ordered petitioners to request the information from the brokers, limiting the request to policies covering the period from 1971 to date. That was in July 1978; petitioners were given 90 days to produce the information. On November 8, petitioners were given an additional 30 days to complete discovery. On November 24, petitioners filed an affidavit offering to make their records, allegedly some 4 million files, available at their offices in London for inspection by respondent. Respondent countered with a motion to compel production of the previously requested documents. On December 21, 1978, the court, noting that no conscientious effort had yet been made to produce the requested information and that no objection had been entered to the discovery order in July, gave petitioners 60 more days to produce the requested information. The District Judge also issued the following warning:
“[I]f you don’t get it to him in 60 days, I am going to enter an order saying that because you failed to give the information as requested, that I am going to assume, under Rule of Civil Procedure 37(b), subsection 2(A), that there is jurisdiction.” 1 App. 115a.
A few moments later he restated the warning as follows: “I will assume that jurisdiction is here with this court unless you produce statistics and other information in that regard that would indicate otherwise.” Id., at 116a.
On April 19, 1979, the court, after concluding that the requested material had not been produced, imposed the threatened sanction, finding that “for the purpose of this litigation the Excess Insurers are subject to the in personam jurisdiction of this Court due to their business contacts with Pennsylvania.” Id., at 201a. Independently of the sanction, the District Court found two other grounds for holding that it had personal jurisdiction over petitioners. First, on the record established, it found that petitioners had sufficient business contacts with Pennsylvania to fall within the Pennsylvania long-arm statute. Second, in adopting the terms of the INA contract with CBG — a Pennsylvania insurance contract — the excess insurers implicitly agreed to submit to the jurisdiction of the court.
Except with respect to three excess insurers, the Court of Appeals for the Third Circuit affirmed the jurisdictional holding, relying entirely upon the validity of the sanction. Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F. 2d 877 (1981). That court specifically found that the discovery orders of the District Court did not constitute an abuse of discretion and that imposition of the sanction fell within the limits of trial court discretion under Rule 37(b):
“The purpose and scope of the ordered discovery were directly related to the issue of jurisdiction and the rule 37 sanction was tailored to establish as admitted those jurisdictional facts that, because of the insurers’ failure to comply with discovery orders, CBG was unable to adduce through discovery.” 651 F. 2d, at 885.
Furthermore, it held that the sanction did not violate petitioners’ due process rights, because it was no broader than “reasonably necessary” under the circumstances.
Because the decision below directly conflicts with the decision of the Court of Appeals for the Fifth Circuit in Familia de Boom v. Arosa Mercantil, S.A., 629 F. 2d 1134 (1980), we granted certiorari. 454 U. S. 963 (1981).
H-< ■ 4
In McDonald, v. Mabee, 243 U. S. 90 (1917), another case involving an alleged lack of personal jurisdiction, Justice Holmes wrote for the Court, “great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” Id., at 91. Petitioners’ basic submission is that to apply Rule 37(b)(2) to jurisdictional facts is to allow fiction to get the better of fact and that it is impermissible to use a fiction to establish judicial power, where, as a matter of fact, it does not exist. In our view, this represents a fundamental misunderstanding of the nature of personal jurisdiction.
The validity of an order of a federal court depends upon that court’s having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U. S. 165, 171-172 (1938); Thompson v. Whitman, 18 Wall. 457, 465 (1874). The concepts of subject-matter and personal jurisdiction, however, serve different purposes, and these different purposes affect the legal character of the two requirements. Petitioners fail to recognize the distinction between the two concepts — speaking instead in general terms of “jurisdiction” — although their argument’s strength comes from conceiving of jurisdiction only as subject-matter jurisdiction.
Federal courts are courts of limited jurisdiction. The character of the controversies over which federal judicial authority may extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower federal courts is further limited to those subjects encompassed within a statutory grant of jurisdiction. Again, this reflects the constitutional source of federal judicial power: Apart from this Court, that power only exists “in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1.
Subject-matter jurisdiction, then, is an Art. Ill as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, California v. LaRue, 409 U. S. 109 (1972), principles of estoppel do not apply, American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18 (1951), and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings. Similarly, a court, including an appellate court, will raise lack of subject-matter jurisdiction on its own motion. “[T]he rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884).
None of this is true with respect to personal jurisdiction. The requirement that a court have personal jurisdiction flows not from Art. Ill, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Thus, the test for personal jurisdiction requires that “the maintenance of the suit. . . not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940).
Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. In McDonald v. Mabee, supra, the Court indicated that regardless of the power of the State to serve process, an individual may submit to the jurisdiction of the court by appearance. A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court. In National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 316 (1964), we stated that “parties to a contract may agree in advance to submit to the jurisdiction of a given court,” and in Petrowski v. Hawkeye-Security Co., 350 U. S. 495 (1956), the Court upheld the personal jurisdiction of a District Court on the basis of a stipulation entered into by the defendant. In addition, lower federal courts have found such consent implicit in agreements to arbitrate. See Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F. 2d 354 (CA2 1964); 2 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 4.02[3], n. 22 (1982) and cases listed there. Furthermore, the Court has upheld state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state procedures. See Adam v. Saenger, 303 U. S. 59, 67-68 (1938) (“There is nothing in the Fourteenth Amendment to prevent a state from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts .... It is the price which the state may exact as the condition of opening its courts to the plaintiff”); Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29-30 (1917) (“[W]hat acts of the defendant shall be deemed a submission to [a court’s] power is a matter upon which States may differ”). Finally, unlike subject-matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Federal Rules of Civil Procedure, “[a] defense of lack of jurisdiction over the person ... is waived” if not timely raised in the answer or a responsive pleading.
In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is — a legal right protecting the individual. The plaintiff’s demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law — i. e., certain factual showings will have legal consequences — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.
The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection. A sanction under Rule 37(b)(2)(A) consisting of a finding of personal jurisdiction has precisely the same effect. As a general proposition, the Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than the Rule 12 waiver. Although “a court cannot conclude all persons interested by its mere assertion of its own power,” Chicago Life Ins. Co. v. Cherry, supra, at 29, not all rules that establish legal consequences to a party’s own behavior are “mere assertions” of power.
Rule 37(b)(2)(A) itself embodies the standard established in Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909), for the due process limits on such rules. There the Court held that it did not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. Such a rule was permissible as an expression of “the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered .... [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.” Id., at 350-351.
The situation in Hammond was specifically distinguished from that in Hovey v. Elliott, 167 U. S. 409 (1897), in which the Court held that it did violate due process for a court to take similar action as “punishment” for failure to obey an order to pay into the registry of the court a certain sum of money. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption. See Societe Internationale v. Rogers, 357 U. S. 197, 209-213 (1958). If there is no abuse of discretion in the application of the Rule 37 sanction, as we find to be the case here (see Part III), then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver.
Petitioners argue that a sanction consisting of a finding of personal jurisdiction differs from all other instances in which a sanction is imposed, including the default judgment in Hammond Packing, because a party need not obey the orders of a court until it is established that the court has personal jurisdiction over that party. If there is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply. Until the court has established personal jurisdiction, moreover, any assertion of judicial power over the party violates due process.
This argument again assumes that there is something unique about the requirement of personal jurisdiction, which prevents it from being established or waived like other rights. A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding. See Baldwin v. Traveling Men’s Assn., 283 U. S. 522, 525 (1931). By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings. Id., at 524; American Surety Co. v. Baldwin, 287 U. S. 156, 166 (1932). As demonstrated above, the manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding. A particular rule may offend the due process standard of Hammond Packing, but the mere use of procedural rules does not in itself violate the defendant’s due process rights.
I — I l-H HH
Even if Rule 37(b)(2) may be applied to support a finding of personal jurisdiction, the question remains as to whether it was properly applied under the circumstances of this case. Because the District Court’s decision to invoke the sanction was accompanied by a detailed explanation of the reasons for that order and because that decision was upheld as a proper exercise of the District Court’s discretion by the Court of Appeals, this issue need not detain us for long. What was said in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639, 642 (1976), is fully applicable here: “The question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have [applied the sanction]; it is whether the District Court abused its discretion in so doing” (citations omitted). For the reasons that follow, we hold that it did not.
Rule 37(b)(2) contains two standards — one general and one specific — that limit a district court’s discretion. First, any sanction must be “just”; second, the sanction must be specifically related to the particular “claim” which was at issue in the order to provide discovery. While the latter requirement reflects the rule of Hammond Packing, supra, the former represents the general due process restrictions on the court’s discretion.
In holding that the sanction in this case was “just,” we rely specifically on the following. First, the initial discovery request was made in July 1977. Despite repeated orders from the court to provide the requested material, on December 21, 1978, the District Court was able to state that the petitioners “haven’t even made any effort to get this information up to this point.” 1 App. 112a. The court then warned petitioners of a possible sanction. Confronted with continued delay and an obvious disregard of its orders, the trial court’s invoking of its powers under Rule 37 was clearly appropriate. Second, petitioners repeatedly agreed to comply with the discovery orders within specified time periods. In each instance, petitioners failed to comply with their agreements. Third, respondent’s allegation that the court had personal jurisdiction over petitioners was not a frivolous claim, and its attempt to use discovery to substantiate this claim was not, therefore, itself a misuse of judicial process. The substantiality of the jurisdictional allegation is demonstrated by the fact that the District Court found, as an alternative ground for its jurisdiction, that petitioners had sufficient contacts with Pennsylvania to fall within the State’s long-arm statute. Supra, at 699. Fourth, petitioners had ample warning that a continued failure to comply with the discovery orders would lead to the imposition of this sanction. Furthermore, the proposed sanction made it clear that, even if there was not compliance with the discovery order, this sanction would not be applied if petitioners were to “produce statistics and other information” that would indicate an absence of personal jurisdiction. 1 App. 116a. In effect, the District Court simply placed the burden of proof upon petitioners on the issue of personal jurisdiction. Petitioners failed to comply with the discovery order; they also failed to make any attempt to meet this burden of proof. This course of behavior, coupled with the ample warnings, demonstrates the “justice” of the trial court’s order.
Neither can there be any doubt that this sanction satisfies the second requirement. CBG was seeking through discovery to respond to petitioners’ contention that the District Court did not have personal jurisdiction. Having put the issue in question, petitioners did not have the option of blocking the reasonable attempt of CBG to meet its burden of proof. It surely did not have this option once the court had overruled petitioners’ objections. Because of petitioners’ failure to comply with the discovery orders, CBG was unable to establish the full extent of the contacts between petitioners and Pennsylvania, the critical issue in proving personal jurisdiction. Petitioners’ failure to supply the requested information as to its contacts with Pennsylvania supports “the presumption that the refusal to produce evidence . . . was but an admission of the want of merit in the asserted defense.” Hammond Packing, 212 U. S., at 351. The sanction took as established the facts — contacts with Pennsylvania — that CBG was seeking to establish through discovery. That a particular legal consequence — personal jurisdiction of the court over the defendants — follows from this, does not in any way affect the appropriateness of the sanction.
> HH
Because the application of a legal presumption to the issue of personal jurisdiction does not in itself violate the Due Process Clause and because there was no abuse of the discretion granted a district court under Rule 37(b)(2), we affirm the judgment of the Court of Appeals.
So ordered.
The petition with which we deal in this case was filed as a cross-petition in response to the petition for certiorari filed in No. 81-290, Compagnie des Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd. We granted the cross-petition, limiting the grant to the question of the validity of the Rule 37(b)(2) sanction. 454 U. S. 963 (1981). We shall refer to the cross-petitioners as “petitioners” and to the cross-respondent as “respondent.”
The District Court described these excess insurers as follows:
“Of the 21 Excess Insurers, five are English companies representing English domestic interests but insuring risks throughout the world, particularly in Pennsylvania. Seven are English companies which represent non English parents, or affiliates. The United States, Japan and Israel are the nationalities of two each of the Excess Insurer Defendants. Switzerland and the Republic of Ireland are the nationalities of one each of the Excess Insurer Defendants. The remaining Excess Insurer Defendant is a Belgium Company which represents the United States parent.” 1 App. 196a.
Four of the excess insurers did not contest personal jurisdiction in the District Court. Id., at 105a. The Court of Appeals directed the dismissal of the complaint with respect to three others. Compagnie des Bauxites de Guinee v. Insurance Co. of North America, 651 F. 2d 877, 886 (1981). CBG challenges the latter action in its petition for certiorari in No. 81-290.
One of the excess insurers, L’Union Atlantique S. A. d’Assurances, does business in Brussels, and was sent a separate placing slip.
The motion for summary judgment was filed on May 20,1977. In it, 17 of the excess insurers alleged a lack of in personam jurisdiction and all 21 excess insurers sought dismissal on the ground oí forum non conveniens. The District Court denied the motion on April 19, 1979.
On March 22,1979, the excess insurers instituted a suit against CBG in England, attackingthe validity of the insurance contract. Inits April 19 decision, the District Court found that “the commencement of the separate action in England [was] oppressive, unfair, and an act of bad faith under all of the circumstances.” 1 App. 203a. It, therefore, enjoined the continuation of that suit. This aspect of the District Court decision was reversed by the Court of Appeals. Respondent seeks certiorari review of that decision (see n. 1, supra,).
It reversed as to three of the excess insurers on the grounds that they had complied with the discovery orders and that their contacts with Pennsylvania were not sufficient to justify exercise of the Pennsylvania long-arm statute. It also held that the District Court had abused its discretion in enjoining the action in England. Judge Gibbons dissented on the propriety of the sanction, arguing that the District Court had abused its discretion. He also expressed some doubt that a Rule 37 sanction could ever be used as the source of personal jurisdiction. 651 F. 2d, at 892, n. 4.
In Familia de Boom, the Fifth Circuit held that a sanction under Rule 37(b)(2) is valid only if the court has personal jurisdiction over the party that has refused compliance with a court order. Personal jurisdiction must, it held, appear from the record independently of the sanction. The Courts of Appeals for the Fourth and Eighth Circuits, on the other hand, have agreed with the Third Circuit on the appropriateness of a sanction on the issue of personal jurisdiction. Lekkas v. Liberian M/V Caledonia, 443 F. 2d 10, 11 (CA4 1971); English v. 21st Phoenix Corp., 590 F. 2d 723 (CA8 1979).
A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations — both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938).
It is true that we have stated that the requirement of personal jurisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignty vis-a-vis other States. For example, in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291-292 (1980), we stated:
“[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” (Citation omitted.)
Contrary to the suggestion of Justice Powell, post, at 713-714, our holding today does not alter the requirement that there be “minimum contacts” between the nonresident defendant and the forum State. Rather, our holding deals with how the facts needed to show those “minimum contacts” can be established when a defendant fails to comply with court-ordered discovery. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected.
The Advisory Committee Notes to the Rule specifically stated that “the provisions of the rule find support in [Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909)].” Final Report of Advisory Committee on Rules for Civil Procedure 25 (1937). See also Societe Internationale v. Rogers, 357 U. S. 197, 209 (1958).
Counsel for petitioners agreed to this characterization of the sanction at oral argument. Tr. of Oral Arg. 47-48.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_casetyp1_7-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Alice CHILDRESS, Plaintiff-Appellee, v. Clarice TAYLOR, Paul B. Berkowsky, the Moms Company, and Ben Caldwell, Defendants-Appellants.
No. 1764, Docket 91-7309.
United States Court of Appeals, Second Circuit.
Argued July 8, 1991.
Decided Sept. 18, 1991.
Peter Herbert, New York City (Baila H. Celedonia, Richard S. Mandel, Alasdair J. McMullan, Cowan, Liebowitz & Latman, New York City, on the brief), for defendants-appellants.
David Blasband, New York City (Nancy F. Wechsler, Jessica R. Friedman, Deutsch Klagsbrun & Blasband, on the brief), for plaintiff-appellee.
Before MESKILL, NEWMAN, and PRATT, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
This appeal requires consideration of the standards for determining when a contributor to a copyrighted work is entitled to be regarded as a joint author. The work in question is a play about the legendary Black comedienne Jackie “Moms” Mabley. The plaintiff-appellee Alice Childress claims to be the sole author of the play. Her claim is disputed by defendant-appellant Clarice Taylor, who asserts that she is a joint author of the play. Taylor, Paul B. Berkowsky, Ben Caldwell, and the “Moms” Company appeal from the February 21, 1991, judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) determining, on motion for summary judgment, that Childress is the sole author. We affirm.
Facts
Defendant Clarice Taylor has been an actress for over forty years, performing on stage, radio, television, and in film. After portraying “Moms” Mabley in a skit in an off-off-Broadway production ten years ago, Taylor became interested in developing a play based on Mabley’s life. Taylor began to assemble material about “Moms” Mab-ley, interviewing her friends and family, collecting her jokes, and reviewing library resources.
In 1985, Taylor contacted the plaintiff, playwright Alice Childress, about writing a play based on “Moms” Mabley. Childress had written many plays, for one of which she won an “Obie” award. Taylor had known Childress since the 1940s when they were both associated with the American Negro Theatre in Harlem and had previously acted in a number of Childress’s plays.
When Taylor first mentioned the “Moms” Mabley project to Childress in 1985, Childress stated she was not interested in writing the script because she was too occupied with other works. However, when Taylor approached Childress again in 1986, Childress agreed, though she was reluctant due to the time constraints involved. Taylor had interested the Green Plays Theatre in producing the as yet unwritten play, but the theatre had only one slot left on its summer 1986 schedule, and in order to use that slot, the play had to be written in six weeks.
Taylor turned over all of her research material to Childress, and later did further research at Childress’s request. It is undisputed that Childress wrote the play, entitled “Moms: A Praise Play for a Black Comedienne.” However, Taylor, in addition to providing the research material, which according to her involved a process of sifting through facts and selecting pivotal and key elements to include in a play on “Moms” Mabley’s life, also discussed with Childress the inclusion of certain general scenes and characters in the play. Additionally, Childress and Taylor spoke on a regular basis about the progress of the play.
Taylor identifies the following as her major contributions to the play: (1) she learned through interviews that “Moms” Mabley called all of her piano players “Luther,” so Taylor suggested that the play include such a character; (2) Taylor and Childress together interviewed Carey Jordan, “Moms” Mabley’s housekeeper, and upon leaving the interview they came to the conclusion that she would be a good character for the play, but Taylor could not recall whether she or Childress suggested it; (3) Taylor informed Childress that “Moms” Mabley made a weekly trip to Harlem to do ethnic food shopping; (4) Taylor suggested a street scene in Harlem with speakers because she recalléd having seen or listened to such a scene many times; (5) the idea of using a minstrel scene came out of Taylor’s research; (6) the idea of a card game scene also came out of Taylor’s research, although Taylor could not recall who specifically suggested the scene; (7) some of the jokes used in the play came from Taylor’s research; and (8) the characteristics of “Moms” Mabley’s personality portrayed in the play emerged from Taylor’s research. Essentially, Taylor contributed facts and details about “Moms” Mabley’s life and discussed some of them with Childress. However, Chil-dress was responsible for the actual structure of the play and the dialogue.
Childress completed the script within the six-week time frame. Childress filed for and received a copyright for the play in her name. Taylor produced the play at the Green Plays Theatre in Lexington, New York, during the 1986 summer season and played the title role. After the play’s run at the Green Plays Theatre, Taylor planned a second production of the play at the Hudson Guild Theatre in New York City.
At the time Childress agreed to the project, she did not have any firm arrangements with Taylor, although Taylor had paid her $2,500 before the play was produced. On May 9, 1986, Taylor’s agent, Scott Yoselow, wrote to Childress’s agent, Flora Roberts, stating:
Per our telephone conversation, this letter will bring us up-to-date on the current status of our negotiation for the above mentioned project:
1. CLARICE TAYLOR will pay ALICE CHILDRESS for her playwriting services on the MOMS MABLEY PROJECT the sum of $5,000.00, which will also serve as an advance against any future royalties.
2. The finished play shall be equally owned and be the property of both CLARICE TAYLOR and ALICE CHIL-DRESS.
It is my understanding that Alice has commenced writing the project. I am awaiting a response from you regarding any additional points we have yet to discuss.
Flora Roberts responded to Yoselow in a letter dated June 16, 1986:
As per our recent telephone conversation, I have told Alice Childress that we are using your letter to me of May 9, 1986 as a partial memo preparatory to our future good faith negotiations for a contract. There are two points which I include herewith to complete your two points in the May 9th letter, i.e.:
1) The $5,000 advance against any future royalties being paid by Clarice Taylor to Alice Childress shall be paid as follows. Since $1,000 has already been paid, $1,500 upon your receipt of this letter and the final $2,500 to be paid upon submission of the First Draft, but in no event later than July 7, 1986.
2) It is to be understood that pending the proper warranty clauses to be in-eluded in the contract, Miss Childress is claiming originality for her words only in said script.
After the Green Plays Theatre production, Taylor and Childress attempted to formalize their relationship. Draft contracts were exchanged between Taylor’s attorney, Jay Kramer, and Childress’s agent, Roberts. During this period, early 1987, the play was produced at the Hudson Guild Theatre with the consent of both Taylor and Childress. Childress filed for and received a copyright for the new material added to the play produced at the Hudson Guild Theatre.
In March 1987, Childress rejected the draft agreement proposed by Taylor, and the parties’ relationship deteriorated. Taylor decided to mount another production of the play without Childress. Taylor hired Ben Caldwell to write another play featuring “Moms” Mabley; Taylor gave Caldwell a copy of the Childress script and advised him of elements that should be changed.
The “Moms” Mabley play that Caldwell wrote was produced at the Astor Place Theatre in August 1987. No reference to Childress was made with respect to this production. However, a casting notice in the trade paper “Back Stage” reported the production of Caldwell’s play and noted that it had been “presented earlier this season under an Equity LOA at the Hudson Guild Theatre.”
Flora Roberts contacted Jay Kramer to determine whether this notice was correct. Kramer responded:
Ben Caldwell has written the play which I will furnish to you when a final draft is available. We have tried in every way to distinguish the new version of the play from what was presented at the Hudson Guild, both by way of content and billing.
Undoubtedly, because of the prevalence of public domain material in both versions of the play, there may be unavoidable similarities. Please also remember that Alice was paid by Clarice for rights to her material which we have never resolved.
Kramer never sent a copy of Caldwell’s play. Childress’s attorney, Alvin Deutsch, sent Kramer a letter advising him of Chil-dress’s rights in the play as produced at the Hudson Guild and of her concerns about the advertising connecting Caldwell’s play to hers. For example, one advertisement for Caldwell’s play at the Astor Place Theatre quoted reviews referring to Chil-dress’s play. Other advertisements made reference to the fact that the play had been performed earlier that season at the Hudson Guild Theatre.
Childress sued Taylor and other defendants alleging violations of the Copyright Act, 17 U.S.C. § 101 et seq. (1988), the Lanham Act, 15 U.S.C. §§ 1051, 1125(a) (1988), and New York’s anti-dilution statute, N.Y. Gen.Bus.Law § 368-d (McKinney 1984). Taylor contended that she was a joint author with Childress, and therefore shared the rights to the play. Childress moved for summary judgment, which the District Court granted. The Court concluded that Taylor was not a joint author of Childress’s play and that Caldwell’s play was substantially similar to and infringed Childress’s play. In rejecting Taylor’s claim of joint authorship, Judge Haight ruled (a) that a work qualifies as a “joint work” under the definition section of the Copyright Act, 17 U.S.C. § 101, only when both authors intended, at the time the work was created, “that their contributions be merged into inseparable or interdependent parts of a unitary whole,” id., and (b) that there was insufficient evidence to permit a reasonable trier to find that Childress had the requisite intent. The Court further ruled that copyright law requires the contributions of both authors to be independently copyrightable, and that Taylor’s contributions, which consisted of ideas and research, were not copyrightable.
Discussion
In common with many issues arising in the domain of copyrights, the determination of whether to recognize joint authorship in a particular case requires a sensitive accommodation of competing demands advanced by at least two persons, both of whom have normally contributed in some way to the creation of a work of value. Care must be taken to ensure that true collaborators in the creative process are accorded the perquisites of co-authorship and to guard against the risk that a sole author is denied exclusive authorship status simply because another person rendered some form of assistance. Copyright law best serves the interests of creativity when it carefully draws the bounds of “joint authorship” so as to protect the legitimate claims of both sole authors and coauthors.
Co-authorship was well known to the common law. An early formulation, thought by Learned Hand to be the first definition of “joint authorship,” see Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir.1944) {“Marks”), is set out in Levy v. Rutley, L.R., 6 C.P. 523, 529 (Keating, J.) (1871): “a joint laboring in furtherance of a common design.” Judge Hand endorsed that formulation in the District Court, concluding that the book for the comic opera “Sweethearts” was a work of joint authorship. Maurel v. Smith, 220 F. 195 (S.D.N.Y.1915), aff'd, 271 F. 211 (2d Cir.1921). Three decades later, he adopted the formulation for this Circuit in Marks, determining that the words and music of a song (“December and May”) formed a work of joint authorship even though the lyricist wrote the words before he knew the identity of the composer who would later write the music.
Like many brief formulations, the language from Levy v. Rutley is useful in pointing an inquiry in the proper direction but does not provide much guidance in deciding the close cases. Many people can be said to “jointly labor” toward “a common design” who could not plausibly be considered co-authors. And beyond the fairly straightforward context of words and music combined into a song, whatever formulation is selected will not necessarily fit neatly around such varied fact sitúa-tions as those concerning architectural plans, see Meltzer v. Zoller, 520 F.Supp. 847 (D.N.J.1981), or computer programs, see Askton-Tate Corp. v. Ross, 728 F.Supp. 597 (N.D.Cal.1989), aff'd, 916 F.2d 516 (2d Cir.1990). Though the early case law is illuminating, our task is to apply the standards of the Copyright Act of 1976 and endeavor to achieve the results that Congress likely intended.
The Copyright Act defines a “joint work” as
a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
17 U.S.C. § 101. As Professor Nimmer has pointed out, this definition is really the definition of a work of joint authorship. See 1 Nimmer on Copyright § 6.01 (1991). The definition concerns the creation of the work by the joint authors, not the circumstances, in addition to joint authorship, under which a work may be jointly owned, for example, by assignment of an undivided interest. The distinction affects the rights that are acquired. Joint authors hold undivided interests in a work, like all joint owners of a work, but joint authors, unlike other joint owners, also enjoy all the rights of authorship, including the renewal rights applicable to works in which a statutory copyright subsisted prior to January 1, 1978. See 17 U.S.C. § 304.
Some aspects of the statutory definition of joint authorship are fairly straightforward. Parts of a unitary whole are “inseparable” when they have little or no independent meaning standing alone. That would often be true of a work of written text, such as the play that is the subject of the pending litigation. By contrast, parts of a unitary whole are “interdependent” when they have some meaning standing alone but achieve their primary significance because of their combined effect, as in the case of the words and music of a song. Indeed, a novel and a song are among the examples offered by the legislative committee reports on the 1976 Copyright Act to illustrate the difference between “inseparable” and “interdependent” parts. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976) {“House Report”), reprinted in 1976 U.S.C.C.A.N. 5659, 5736; S.Rep. No. 473, 94th Cong., 2d Sess. 103-04 (1975) (“Senate Report”)
The legislative history also clarifies other aspects of the statutory definition, but leaves some matters in doubt. Endeavoring to flesh out the definition, the committee reports state:
[A] work is “joint” if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as “inseparable or interdependent parts of a unitary whole.” The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit....
House Report at 120; Senate Report at 103 (emphasis added). This passage appears to state two alternative criteria—one focusing on the act of collaboration and the other on the parties’ intent. However, it is hard to imagine activity that would constitute meaningful “collaboration” unaccompanied by the requisite intent on the part of both participants that their contributions be merged into a unitary whole, and the case law has read the statutory language literally so that the intent requirement applies to all works of joint authorship. See, e.g., Weissmann v. Freeman, 868 F.2d 1313, 1317-19 (2d Cir.1989); Eckert v. Hurley Chicago Co., Inc., 638 F.Supp. 699, 702-03 (N.D.Ill.1986).
A more substantial issue arising under the statutory definition of “joint work” is whether the contribution of each joint author must be copyrightable or only the combined result of their joint efforts must be copyrightable. The Nimmer treatise argues against a requirement of copyright-ability of each author’s contribution, see 1 Nimmer on Copyright § 6.07; Professor Goldstein takes the contrary view, see 1 Paul Goldstein, Copyright: Principles, Law and Practice § 4.2.1.2 (1989), with the apparent agreement of the Latman treatise, see William F. Patry, batman’s The Copyright Law 116 (6th ed. 1986) (hereinafter “Latman”). The case law supports a requirement of copyrightability of each contribution. See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Ashton-Tate Corp. v. Ross, 728 F.Supp. at 601; Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F.Supp. 1307, 1318-19 (E.D.Pa.1985), aff'd without consideration of this point, 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Kenbrooke Fabrics Inc. v. Material Things, 223 U.S.P.Q. 1039, 1044-45, 1984 WL 532 (S.D.N.Y.1984); Meltzer v. Zoller, 520 F.Supp. 847, 857 (D.N.J.1981); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Construction Co., 542 F.Supp. 252, 259 (D.Neb.1982). The Register of Copyrights strongly supports this view, arguing that it is required by the statutory standard of “authorship” and perhaps by the Constitution. See Moral Rights in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm, on the Judiciary, 101st Cong., 1st Sess. 210-11 (1989) (statement of Ralph Oman).
The issue, apparently open in this Circuit, is troublesome. If the focus is solely on the objective of copyright law to encourage the production of creative works, it is difficult to see why the contributions of all joint authors need be copyrightable. An individual creates a copyrightable work by combining a non-copyrightable idea with a copyrightable form of expression; the resulting work is no less a valuable result of the creative process simply because the idea and the expression came from two different individuals. Indeed, it is not unimaginable that there exists a skilled writer who might never have produced a significant work until some other person supplied the idea. The textual argument from the statute is not convincing. The Act surely does not say that each contribution to a joint work must be copyrightable, and the specification that there be “authors” does not necessarily require a copyrightable contribution. “Author” is not defined in the Act and appears to be used only in its ordinary sense of an originator. The “author” of an uncopyrightable idea is nonetheless its author even though, for entirely valid reasons, the law properly denies him a copyright on the result of his creativity. And the Register’s tentative constitutional argument seems questionable. It has not been supposed that the statutory grant of “authorship” status to the employer of a work made for hire exceeds the Constitution, though the employer has shown skill only in selecting employees, not in creating protectable expression.
Nevertheless, we are persuaded to side with the position taken by the case law and endorsed by the agency administering the Copyright Act. The insistence on copyrightable contributions by all putative joint authors might serve to prevent some spurious claims by those who might otherwise try to share the fruits of the efforts of a sole author of a copyrightable work, even though a claim of having contributed copyrightable material could be asserted by those so inclined. More important, the prevailing view strikes an appropriate balance in the domains of both copyright and contract law. In the absence of contract, the copyright remains with the one or more persons who created copyrightable material. Contract law enables a person to hire another to create a copyrightable work, and the copyright law will recognize the employer as “author.” 17 U.S.C. § 201(b). Similarly, the person with non-copyrightable material who proposes to join forces with a skilled writer to produce a copyrightable work is free to make a contract to disclose his or her material in return for assignment of part ownership of the resulting copyright. Id. § 201(d). And, as with all contract matters, the parties may minimize subsequent disputes by formalizing their agreement in a written contract. Cf. 17 U.S.C. § 101 (“work made for hire” definition of “specially ordered” or “commissioned” work includes requirement of written agreement). It seems more consistent with the spirit of copyright law to oblige all joint authors to make copyrightable contributions, leaving those with non-copyrightable contributions to protect their rights through contract.
There remains for consideration the crucial aspect of joint authorship — the nature of the intent that must be entertained by each putative joint author at the time the contribution of each was created. The wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work — an intention “that their contributions be merged into inseparable or interdependent parts of a unitary whole.” However, an inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work. Similarly, research assistants may on occasion contribute to an author some protectable expression or merely a sufficiently original selection of factual material as would be entitled to a copyright, yet not be entitled to be regarded as a joint author of the work in which the contributed material appears. What distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors.
Focusing on whether the putative joint authors regarded themselves as joint authors is especially important in circumstances, such as the instant case, where one person (Childress) is indisputably the dominant author of the work and the only issue is whether that person is the sole author or she and another (Taylor) are joint authors. See Fisher v. Klein, 16 U.S.P.Q.2d 1795, 1798 (S.D.N.Y.1990); Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 647 (S.D.N.Y.1970), aff'd on other grounds, 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). This concern requires less exacting consideration in the context of traditional forms of collaboration, such as between the creators of the words and music of a song.
In this case, appellant contends that Judge Haight’s observation that “Childress never shared Taylor’s notion that they were co-authors of the play” misapplies the statutory standard by focusing on whether Childress “intended the legal consequences which flowed from her prior acts.” Brief for Appellant at 22. We do not think Judge Haight went so far. He did not inquire whether Childress intended that she and Taylor would hold equal undivided interests in the play. But he properly insisted that they entertain in their minds the concept of joint authorship, whether or not they understood precisely the legal consequences of that relationship. Though joint authorship does not require an understanding by the co-authors of the legal consequences of their relationship, obviously some distinguishing characteristic of the relationship must be understood in order for it to be the subject of their intent. In many instances, a useful test will be whether, in the absence of contractual agreements concerning listed authorship, each participant intended that all would be identified as co-authors. Though “billing” or “credit” is not decisive in all cases and joint authorship can exist without any explicit discussion of this topic by the parties, consideration of the topic helpfully serves to focus the fact-finder’s attention on how the parties implicitly regarded their undertaking.
An inquiry into how the putative joint authors regarded themselves in relation to the work has previously been part of our approach in ascertaining the existence of joint authorship. In Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir.1976), we examined the parties’ written agreements and noted that their provisions indicated “that the parties did not consider themselves joint authors of a single work.” Id. at 22 (emphasis added). This same thought is evident in Judge Le-val’s observation that “[i]t is only where the dominant author intends to be sharing authorship that joint authorship will result.” Fisher v. Klein, 16 U.S.P.Q.2d at 1798 (emphasis added). And it echoes the approach taken by then-District Judge Learned Hand when he determined that the facts showed that two authors “agreed to a joint authorship in the piece, and that they accepted whatever the law implied as to the rights and obligations which arose from such an undertaking.” Maurel v. Smith, 220 F. at 198 (emphasis added). See also Weissmann v. Freeman, 868 F.2d at 1318 (each of those claiming to be joint authors “must intend to contribute to a joint work.”). Judge Haight was entirely correct to inquire whether Childress ever shared Taylor’s “notion that they were coauthors of the Play.”
Examination of whether the putative coauthors ever shared an intent to be coauthors serves the valuable purpose of appropriately confining the bounds of joint authorship arising by operation of copyright law, while leaving those not in a true joint authorship relationship with an author free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law. Joint authorship entitles the co-authors to equal undivided interests in the work, see 17 U.S.C. § 201(a); Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). That equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors. The sharing of benefits in other relationships involving assistance in the creation of a copyrightable work can be more precisely calibrated by the participants in their contract negotiations regarding division of royalties or assignment of shares of ownership of the copyright, see 17 U.S.C. § 201(d).
In this case, the issue is not only whether Judge Haight applied the correct standard for determining joint authorship but also whether he was entitled to conclude that the record warranted a summary judgment in favor of Childress. We are satisfied that Judge Haight was correct as to both issues. We need not determine whether we agree with his conclusion that Taylor’s contributions were not independently copyrightable since, even if they were protectable as expression or as an original selection of facts, we agree that there is no evidence from which a trier could infer that Childress had the state of mind required for joint authorship. As Judge Haight observed, whatever thought of co-authorship might have existed in Taylor’s mind “was emphatically not shared by the purported co-author.” There is no evidence that Childress ever contemplated, much less would have accepted, crediting the play as “written by Alice Childress and Clarice Taylor.”
Childress was asked to write a play about “Moms” Mabley and did so. To facilitate her writing task, she accepted the assistance that Taylor provided, which consisted largely of furnishing the results of research concerning the life of “Moms” Mabley. As the actress expected to portray the leading role, Taylor also made some incidental suggestions, contributing ideas about the presentation of the play’s subject and possibly some minor bits of expression. But there is no evidence that these aspects of Taylor’s role ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play. A playwright does not so easily acquire a co-author.
Judge Haight was fully entitled to bolster his decision by reliance on the contract negotiations that followed completion of the script. Though his primary basis for summary judgment was the absence of any evidence supporting an inference that Chil-dress shared “Taylor’s notion that they were co-authors,” he properly pointed to the emphatic rejection by Childress of the attempts by Taylor’s agent to negotiate a co-ownership agreement and Taylor’s acquiescence in that rejection. Intent “at the time the writing is done” remains the “touchstone,” House Report at 120; Senate Report at 103, but subsequent conduct is normally probative of a prior state of mind. See, e.g., United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990); United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
Taylor’s claim of co-authorship was properly rejected, and with the rejection of that claim, summary judgment for Childress was properly entered on her copyright and unfair competition claims, and on defendants' counterclaim. The judgment of the District Court is affirmed.
. The preamble to this draft agreement stated:
The Producer [Taylor] wishes to acquire from the Author [Childress] the rights to produce and present a dramatic play written by Author and heretofore presented at the Hudson Guild Theatre based on the life and career of Moms Mabley....
. The Caldwell play was billed as being “based on a concept by Clarice Taylor." Taylor was not listed as an author of that play.
. Professor Nimmer suggests that the distinction is analogous to the distinction between derivative and collective works, with parts said to be "inseparable" if the contribution of a second author "recasts], transíorm[s] or adapt[s]” the contribution of a first author, and said to be "interdependent" if the contributions of each author are assembled, without recasting, into a collective whole. See 1 Nimmer on Copyright § 6.04 at 6-11; M.G.B. Homes, Inc. v. Ameron Hoes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990). The analogy is inexact at best since the elements of a collective work normally have considerable significance as independent parts; each play in an anthology remains a significant creation even though the selection of plays entitles the anthology to a copyright, and the selection of items to be combined, which produces the copyrightable ingredient of the collective work, normally adds far less significance to the constituent parts than the enhanced effect resulting from the combination of the words and music of a song in a work of joint authorship.
. Two Circuits have adverted to the issue, but found it unnecessary to resolve it. The District of Columbia Circuit has quoted the passage from the Nimmer treatise that argues against a requirement of copyrightability for all contributions to a joint work but then discussed the issue in a footnote beginning “If Nimmer is correct_" Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1496 & n. 15 (D.C.Cir.1988) (emphasis added), aff'd without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). The Third Circuit has explicitly held the issue open. See Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 136 (3d Cir.1991) (in banc).
. Judge Friendly has suggested that the concept of authorship in the constitutional grant implies some limitations. "It would thus be quite doubtful that Congress could grant employers the exclusive right to the writings of employees regardless of the circumstances.” Scherr v. Universal Match Corp., 417 F.2d 497, 502 (2d Cir.1969) (Friendly, J., dissenting), cert. denied, 397 U.S. 936, 90 S.Ct. 945, 25 L.Ed.2d 116 (1970). He suggested that the "work for hire" doctrine, whether applied to employees or independent contractors (commissioned works) squares with the constitutional concept because vesting rights of authorship in the employer is what the parties "contemplated at the time of contracting, or at least what they probably would have contemplated if they had thought about it." Id. However, this seems more like a justification for transfer of ownership than for recognition of authorship. Though the United States is perhaps the only country that confers “authorship” status on the employer of the creator of a work made for hire, see Latman at 114 n. 2, its decision to do so is not constitutionally suspect.
. In some situations, the editor or researcher will be the employee of the primary author, in which event the copyright in the contributions of the editor or researcher would belong to the author, under the "work made for hire” doctrine. But in many situations the editor or researcher will be an independent contractor or an employee of some person or entity other than the primary author, in which event a claim of joint authorship would not be defeated by the "work made for hire” doctrine.
. Obviously, consideration of whether the parties contemplated listed co-authorship (or would have accepted such billing had they thought about it) is not a helpful inquiry for works written by an uncredited "ghost writer," either as a sole author, as a joint author, or as an employee preparing a work for hire.
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:
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sc_caseorigin
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081
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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.
HELLING et al. v. McKINNEY
No. 91-1958.
Argued January 13, 1993
Decided June 18, 1993
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 37.
Frankie Sue Del Papa, Attorney General of Nevada, argued the cause for petitioners. With her on the briefs were Brooke A. Nielsen, Assistant Attorney General, David F. Sarnowski, Chief Deputy Attorney General, and Anne B. Cathcart, Deputy Attorney General.
Deputy Solicitor General Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Edwin S. Kneedler, William Ranter, and Peter R. Maier.
Cornish F. Hitchcock argued the cause for respondent. With him on the brief was Alan B. Morrison.
A brief of amici curiae urging reversal was filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Steven S. Michaels, Deputy Attorney General, James Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale A Norton, Attorney General of Colorado, Robert A Butter-worth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Mike Moore, Attorney General of Mississippi, William Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Paul Van Dam, Attorney General of Utah, Mary Sue Terry, Attorney General of Virginia, Mario J. Palumbo, Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin, Joseph B. Meyer, Attorney General of Wyoming, John Payton, Corporation Counsel of District of Columbia, and Charles Reischel, Deputy Corporation Counsel, Jorge Perez-Diaz, Attorney General of Puerto Rico, Tautai A F. Fa’alevao, Attorney General of American Samoa, Elizabeth Barrett-Anderson, Attorney General of Guam, and Rosalie Simmonds Ballentine, Attorney General of the Virgin Islands.
John A. Powell, Steven A. Shapiro, and David C. Fathi filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice White
delivered the opinion of the Court.
This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental tobacco smoke (ETS) can form the basis of a claim for relief under the Eighth Amendment.
I
Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, id., at 7-8, and that certain cigarettes burned continuously, releasing some type of chemical, id., at 9. Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. Id., at 14.
The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent’s suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent’s serious medical needs. App. to Pet. for Cert. D2-D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While “society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment,” society cannot yet completely agree on the resolution of these issues. Id., at D3, D6. The Magistrate found that respondent nonetheless could state a claim for deliberate indifference to serious medical needs if he could prove the underlying facts, but held that respondent had failed to present evidence showing either medical problems that were traceable to cigarette smoke or deliberate indifference to them. Id., at D6-D10. The Magistrate therefore granted petitioners’ motion for a directed verdict and granted judgment for the defendants. Id., at DIO.
The Court of Appeals affirmed the Magistrate’s grant of a directed verdict on the issue of deliberate indifference to respondent’s immediate medical symptoms. McKinney v. Anderson, 924 F. 2d 1500, 1512 (CA9 1991). The Court of Appeals also held that the defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS. Although it agreed that respondent did not have a constitutional right to a smoke-free prison environment, the court held that respondent had stated a valid cause of action under the Eighth Amendment by alleging that he had been involuntarily exposed to levels of ETS that posed an unreasonable risk of harm to his future health. Id., at 1509. In support of this judgment, the court noticed scientific opinion supporting respondent’s claim that sufficient exposure to ETS could endanger one’s health. Id., at 1505-1507. The court also concluded that society’s attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency. Id., at 1508. The court therefore held that the Magistrate erred by directing a verdict without permitting respondent to prove that his exposure to ETS was sufficient to constitute an unreasonable danger to his future health.
Petitioners sought review in this Court. In the meantime, this Court had decided Wilson v. Seiter, 501 U. S. 294 (1991), which held that, while the Eighth Amendment applies to conditions of confinement that are not formally imposed as a sentence for a crime, such claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner’s medical needs, the standard for that state of mind is the “deliberate indifference” standard of Estelle v. Gamble, 429 U. S. 97 (1976). We granted certiorari in this case, vacated the judgment below, and remanded the case to the Court of Appeals for further consideration in light of Seiter. 502 U. S. 903 (1991).
On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his health — the objective component of respondent’s Eighth Amendment claim. McKinney v. Anderson, 959 F. 2d 853, 854 (CA9 1992). The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at 854.
Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in Clemmons v. Bohannon, 956 F. 2d 1523 (1992). We granted certiorari. 505 U. S. 1218 (1992). We affirm.
II
The petition for certiorari which we granted not only challenged the Court of Appeals’ holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent’s complaint rested only on the alleged current effects of exposure to cigarette smoke, not on the possible future effects; that the issues framed for trial were likewise devoid of such an issue; and that such a claim was not presented, briefed, or argued on appeal and that the Court of Appeals erred in sua sponte deciding it. Ibid. Brief for Petitioners 46-49. The Court of Appeals was apparently of the view that the claimed entitlement to a smoke-free environment subsumed the claim that exposure to ETS could endanger one’s future health. From its examination of the record, the court stated that “[b]oth before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health,” 924 F. 2d, at 1503; stated that the Magistrate had excluded evidence relating to the potential health effects of exposure to ETS; and noted that two of the issues on appeal addressed whether the Magistrate erred in holding as a matter of law that compelled exposure to ETS does not violate a prisoner’s rights and whether it was error to refuse to appoint an expert witness to testify about the health effects of such exposure. While the record is ambiguous and the Court of Appeals might well have affirmed the Magistrate, we hesitate to dispose of this case on the basis that the court misread the record before it. We passed over the same claim when we vacated the judgment below and remanded when the case was first before us, Pet. for Cert., O. T. 1991, No. 91-269, pp. 23-26, and the primary question on which certiorari was granted, and the question to which petitioners have devoted the bulk of their briefing and argument, is whether the court below erred in holding that McKinney had stated an Eighth Amendment claim on which relief could be granted by alleging that his compelled exposure to ETS poses an unreasonable risk to his health.
Ill
It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said in DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 199-200 (1989):
“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e. g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment. .. .”
Contemporary standards of decency require no less. Estelle v. Gamble, 429 U. S., at 103-104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, “deliberate indifference to serious medical needs of prisoners” violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Id., at 104, Wilson v. Seiter, 501 U. S. 294 (1991), later held that a claim that the conditions of a prisoner’s confinement violate the Eighth Amendment requires an inquiry into the prison officials’ state of mind. “ ‘Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the “deliberate indifference” standard articulated in Estelle.’” Id., at 303.
Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat.
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U. S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” DeShaney, supra, at 200. It is “cruel and unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg v. Romeo, 457 U. S. 307, 315-316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U. S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F. 2d 1291 (CA5 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F. 2d 559, 572 (CA10 1980), stated that a prisoner need not wait until he is actually assaulted before obtaining relief. As respondent points out, the Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion. See Brief for Respondent 24-27. We thus reject petitioners’ central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.
The United States as amicus curiae supporting petitioners does not contend that the Amendment permits “even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects.” Brief for United States as Amicus Curiae 19. Hutto v. Finney, the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would “present a risk of sufficient likelihood or magnitude — and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented — that” the Amendment’s protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a “ ‘serious medical nee[d],’ ” and that exposure to ETS is not contrary to current standards of decency. Id., at 20-22. It would be premature for us, however, as a matter of law to reverse the Court of Appeals on the basis suggested by the United States. The Court of Appeals has ruled that McKinney’s claim is that the level of ETS to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS.
IV
We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.
With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-a-day smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy smoker, the fact is that at present he is not so exposed. Moreover, the director of the Nevada State Prisons adopted a formal smoking policy on January 10, 1992. This policy restricts smoking in “program, food preparation/serving, recreational and medical areas” to specifically designated areas.
It further provides that wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. See App. to Brief for United States as Amicus Curiae A1-A2. It is possible that the new policy will be administered in a way that will minimize the risk to McKinney and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction.
Also with respect to the objective factor, determining whether McKinney’s conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.
On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities’ current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney’s counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that prison authorities are ignoring the possible dangers posed by exposure to ETS. Tr. of Oral Arg. 33. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration.
V
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
This was true of the defendants’ alleged liability for housing respondent with a cellmate who smoked five packs of cigarettes each day.
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Answer:
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songer_casetyp1_7-2
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the 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".
VON SEGERLUND et al. v. DYSART et al.
No. 10339.
Circuit Court of Appeals, Ninth Circuit.
Aug. 30, 1943.
Rupert B. Turnbull and L. H. Phillips, both of Los Angeles, Cal., for appellants.
Hiram E. Casey and S. Bernard Wager, both of Los Angeles, Cal., for appellee.
Before WILBUR, GARRECHT, and HEALY, Circuit Judges.
GARRECHT, Circuit Judge. '
The pivotal question herein is whether or not, in a case where a judgment creating a lien on only the real property of an alleged insolvent was obtained prior to the four-month period immediately preceding the filing of an involuntary petition in bankruptcy, a levy on the debtor’s personal property made within the four-month period created a lien the permitting of which constituted an act of bankruptcy.
On March 22, 1937, a judgment in favor of Mary T. Christensen and against Stella Dysart, the appellee, was docketed in the office of the county clerk of McKinley County, New Mexico, and thereupon became a lien upon the appellee’s real property in that county.
On August 25, 1938, a judgment in favor óf E. H. Youngblood against the appellee was filed in the same county.
On September 8, 1937, and on December 13, 1939, writs of execution were served under the Christensen judgment by levying upon the appellee’s personal property.
On July 5, 1941, July 29, 1941, and October 17, 1941, petitions to have the appellee declared a bankrupt were filed by about forty unsecured creditors, who are the appellants herein.
On July 7, 1941, by virtue of an alias writ issued under the Christensen judgment on May 5, 1941, and a levy thereunder made on June 6, 1941, personal property of the appellee was sold by the sheriff of McKinley County, New Mexico. It was the permitting of this execution, levy and sale, which occurred within the statutory four-month period, that appellants contend constituted the act of bankruptcy.
In the court below, the appellants offered in evidence authenticated copies of the judgments, executions, notices of sale, sheriff’s returns of sale, and other proceedings in the Christensen and Youngblood cases, supra. An objection on behalf of the appellee to the introduction of the Christensen exhibit was sustained. The Youngblood exhibit was admitted for the sole purpose of showing that at the date the Youngblood judgment was secured the appellee was the owner, of real property that stood in her name in McKinley County, New Mexico.
The appellants then made an offer of proof to show that each of the petitioning creditors had provable claims against the appellee; that those claims aggregated more than $500; that on the dates on which the three petitions in involuntary bankruptcy were filed, during the respective four-month periods immediately prior thereto, and on the dates of the alleged acts of bankruptcy, the appellee was insolvent. These offers of proof were denied. The court ruled that even if insolvency were proved, there would be lacking the other two elements essential to establish the act of bankruptcy alleged — the existence of a lien and the failure to discharge it.
The foregoing rulings are alleged to constitute error, and upon that contention the present appeal is bottomed.
A connected case, involving the same alleged bankrupt, some of the same petitioning creditors, and the same Christensen and Youngblood judgments, has already been before this court. Dysart v. Von Segerlund et al., 118 F.2d 482, decided March 22, 1941. We there held that, though there was evidence that the alleged bankrupt permitted an execution to be issued on November 21, 1939, and to be levied on her property on December 13, 1939, there was no evidence that the lien thus obtained, if any, was not vacated within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of the property, as required by the Bankruptcy Act. Since the date of that decision, however, another act of bankruptcy, as we have seen, is alleged to have been committed.
The provision of the Bankruptcy Act pertinent to this case is 11 U.S.C.A. § 21, sub. a(3), which reads as follows:
Ҥ 21. Acts of bankruptcy
“a. Acts of bankruptcy by a person shall consist of his having * * * (3) suffered or permitted, while insolvent, any creditor to obtain a lien upon any of his property through legal proceedings and not having vacated or discharged such lien within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of such property.”
The appellants contend that the levy of execution on personal property of the alleged bankrupt on June 6, 1941, followed by the sale of that property on July 7, 1941, created a lien thereon within four months preceding the filing of the creditors’ petitions, which lien was not discharged by the debtor.
The appellee, on the other hand, asserts that when a judgment has become a hen and four months are permitted to elapse, the right to claim that a lien has been secured under that judgment within the meaning of § 21 (a) (3) has been “exhausted”.
A judgment lien as it exists in the United States is a creature of statute, and in the absence of statute does not give rise to a lien until an execution is delivered to the sheriff. 34 C.J. 568, 569, § 870. “Except in the few jurisdictions where a judgment does not of itself bind land, a judgment attaches as a lien without the use of any process, except as to property which is not commonly subject to the lien of a judgment, but can be made so by the levy of an execution, as trust property or personalty * * * ” Id., pp. 584, 585, § 892. “The lien [of a judgment] does not attach to personal property except where a statute so provides.” Id., pp. 587, 588, § 898. See also 31 Am.Jur., Judgments, § 308, p. 23.
A levy on the property of a judgment debtor ordinarily gives the execution creditor a lien thereon. 33 C.J.S., Executions, p. 289, § 123; 1 Collier on Bankruptcy (Fourteenth Edition), § 3.308, p. 449. Liens obtained by a levy on personal property do not usually require the aid of equity for their enforcement.
The foregoing principles are found incorporated in the statutes and jurisprudence of most states.
The statutes of New Mexico seem to follow the general law relating to judgment liens and levy liens, although in some respects in that state both the statutory enactments and the jurisprudence on the subject are somewhat meager. It was stipulated by counsel, however, that, under the laws of New Mexico as they existed at the time the judgment was docketed, such docketing created a lien on the real property of the judgment debtor. This stipulation is apparently based upon § 76-110 of the New Mexico Statutes Annotated of 1929, which reads as follows: “Any money judgment rendered in the supreme or district court shall be docketed by the clerk of the court in a book kept for the purpose, and shall be a lien on the real estate of the judgment debtor from the date of the filing of a transcript of the docket of such judgment in such book in the office of the county clerk of the county in which such real estate is situate.”
From the foregoing section it is clear — and counsel for the appellee so concede — that in New Mexico a judgment is not “an automatic lien on personal property”.
Neither the statutes of New Mexico nor the record herein are quite so specific regarding the lien created on personal property as the result of a levy under a writ of execution. Both sides, however, assume that in New Mexico the general law is followed, and that a levy does create a lien on personalty. Counsel for the appellee contend, however, that permitting the procurement of the lien so created, which came into existence more than four months after the creation of the “original” lien on the real property of the judgment debtor, cannot constitute an act of bankruptcy.
Be that as it may, regardless of any stipulation or avowals in the record, this court may take judicial notice of the statutes of New Mexico, as interpreted by its highest court. Lamar v. Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 29 L.Ed 94; Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455.
Independent research has convinced us that New Mexico follows the general law regarding the creation of a lien on personalty as the result of a levy under a writ of execution. Section 21-213 of the New Mexico Statutes Annotated of 1941 reads as follows: “The lien of the levy upon the property shall continue until the debt is paid, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient, if not, then out of any other property of the debtor, subject to execution.” [Italics our own.]
The foregoing section has' been carried over verbatim from the 1929 code, supra, vdiere it appeared as § 46-122, under the heading of “Alias writ”. And it was under an “alias writ” that the levy of June 6, 1941, was made.
An examination of the entire chapter in which the foregoing section appears makes it clear that the “property” referred to therein means personalty as well as realty. It is equally clear that each levy creates a new lien upon the property affected by it.
We are thus brought to a consideration of the final and crucial question in this case; namely, is a lien thus created by a levy upon personal property during the four months’ period preceding the filing of a petition in involuntary bankruptcy, under a judgment that itself created a lien upon the debtor’s real property more than four months prior to such filing, the kind of lien that is denounced in § 21 (a) (3) ?
At the outset, it is well to recall the three elements that go to make the act of bankruptcy condemned by the clause in question. In the oft-quoted case of Citizens Banking Co. v. Ravenna Nat. Bank, 234 U.S. 360, 364, 365, 34 S.Ct. 806, 808, 58 L.Ed. 1352, those elements are thus stated: “Looking at the terms of this provision, it is manifest that the act of bankruptcy which it defines consists of three elements. The first is the insolvency of the debtor; the second is suffering or permitting a creditor to obtain a preference through legal proceedings; that is, to acquire a lien upon the property of. the debtor by means of a judgment, attachment, execution or kindred proceeding, the enforcement of which will enable the creditor to collect a greater percentage of his claim than other creditors of the same class; and the third is the failure of the debtor to vacate or discharge the lien and resulting preference five days before a sale or final disposition of any property affected. Only through the combination of the three elements is the act of bankruptcy committed. Insolvency alone does not suffice, nor is it enough that it be coupled with suffering or permitting a creditor to obtain a preference by legal proceedings. The third element must also be present, else there is no act of bankruptcy within the meaning of this provision.” [Italics our own]
See also In re D. F. Herlehy Co. D.C., 247 E. 369, 373, 374.
While the clause under discussion has been amended since the decision in the Ravenna Bank case, supra, for the purposes of the instant case the language used in that decision is apposite.
It will be observed that it is the creation,, the obtaining, the acquisition of a lien within the statutory period that must not be permitted. The' continuation of a lien that was created more than four months before the filing of the petition is not denounced. In Globe Bank & Trust Co. v. Martin, 236 U.S. 288, 299, 35 S.Ct. 377, 381, 59 L.Ed. 583, the court said: “The difference, having the provisions of the act in view, between the beginning of a proceeding to assert liens that existed more than four months before the filing of the petition in bankruptcy, and the attempt to create them by attachment and other proceedings within four months, has been recognized in decisions of this court.” [Italics our own]
The importance of the time of creation of a lien in determining whether or not the permitting of it is condemned by the statute was well emphasized by Judge Lowell in Re Blair, D.C., 108 F. 529, 530: “Under some circumstances, all liens obtained through legal proceedings are avoided, in whatever part of the suit or by whatever form of proceeding they are created. If the lien is created by the levy, then the lien of the levy is avoided; if created by the judgment, then the lien of the judgment is avoided; if created by the attachment, then the lien of the attachment is avoided; but, if the lien created by the attachment is saved, that lien may be enforced by appropriate proceedings, even though such proceedings include a judgment and levy made within the limited time.” [Italics our own]
The decision in Re Blair was cited with approval in the leading cases of Metcalf v. Bárker, 187 U.S. 165, 174, 23 S.Ct. 67, 47 L.Ed. 122, and Straton v. New, 283 U.S. 318, note page 326, 51 S.Ct. 465, note page 468, 75 L.Ed. 1060. See also 1 Remington on Bankruptcy (Fourth Edition), § 150.70, p. 242, et seq.; id., 1942 Supplement, § 150 and note, pp. 68-69; id., Vol. 4, § 1889, p. 930.
Counsel have not cited any decision that is squarely in point. The books, however, are not entirely barren of precedents.
Perhaps the most lucid statement of the rule that we regard as controlling in this case is to be found in Re Bailey, D.C., 144 F. 214, 215. In that case Judge Wolverton, of the United States District Court of Oregon, used the following language: “A judgment itself does not necessarily constitute a lien upon any property, unless made so by statute. Usually, as it respects personal property, it only becomes a lien by virtue of an execution and a levy thereunder. From the time of the levy, the lien is deemed to attach, and not before. Collier on Bankruptcy (4th Ed.) p. 419. It can make no difference, therefore, in this case, that the judgment was obtained long prior to the filing of the petition in bankruptcy. The levy was made some time prior to August 1, 1903, and less than four months preceding the filing of such petition.”
■ Thirty years after the decision in Re Bailey was handed down, it was cited with approval on this same point by the United States Circuit Court of Appeals for the Second Circuit. In Adler v. Greenfield, 83 F.2d 955, 956, the court said: “It makes no difference that the judgment was obtained more than four months prior to the filing of the petition in bankruptcy. The judgment alone gives no lien against the debtor’s personal property until the execution against it is delivered to the proper officer to be executed. New York Civil Practice Act, § 679. Here the property was transferred to the bankrupt, within the meaning of the statute, and since the levy and sale were made within the four months preceding the bankruptcy, it was voidable by the trustee. [Cases cited]”.
Again, in Nogi v. Greenwood, D.C., 1 F.Supp. 60, 62, we find the following language: “A judgment is not a lien on personal property of the debtor; it is only the enforcement of such judgment that can possibly create a preference. The mere entry of judgment cannot.”
And in a more recent case we find the same principle thus succinctly stated: “In the case of judgments, judgment creditors obtain no lien against personal property until execution and levy.” In re Richenell Fabric Mfg. Co., Inc., D.C., 31 F.Supp. 645, 647.
The date of the levy fixes the date when the lien is created.
So in the instant case, Mrs. Christensen obtained no lien on the appellee’s personal property affected by the levy of June 6, 1941, until a deputy sheriff of McKinley County actually levied execution upon that property, as reported by him in his amended return of execution. The judgment that the creditor had obtained in 1937 operated automatically as a lien only upon the real property of the appellee. As far as the specific personal property in question is concerned, a judgment lien was not dormant, not quiescent, not in a state of suspended animation: it simply did not exist.
The very language of § 21 (a) (3) shows that it contemplates the possibility of the creation of a lien on part of the property of a debtor, while the rest of his estate, both real and personal, may remain unencumbered. The debtor, while insolvent, is forbidden to permit any creditor to obtain a lien upon “any” of his property, without discharging “such” lien at least five days before the date set for the sale of “such” property. 1 Collier on Bankruptcy, Fourteenth Edition, § 3.310, p. 454.
Lest the foregoing paragraph be thought to state a truism, it should be remembered that the appellee insists that once a lien is “obtained upon any property of the debtor through legal proceedings * * * wherein the judgment has become a lien”, and the four-month period has expired, “then the right to have the procurement of a lien upon such judgment as an act of bankruptcy has been exhausted.” Counsel cite no authorities supporting this theory of “exhaustion”. Perhaps this statement in the brief embodies the fallacy upon which, as we think, the appellee’s argument is based. One cannot “exhaust” what has never existed. Until the levy of June 6, 1941, there never was imposed upon the appellee’s personal property any lien whatsoever resulting either directly or indirectly from the Christensen judgment.
Counsel for the appellee devote one-third of their brief to a quotation from this court’s opinion in the case of Northwestern Pulp & Paper Co. v. Finish Luth B. Concern, 51 F.2d 340, 342-345. That opinion has been widely cited in the books, and we are in complete accord with the conclusions arrived at therein. The facts in the Northwestern Pulp case, however, were quite different from those that now confront us. The following excerpts from that opinion, which the appellee seems to have overlooked, make clear at once the essential difference between the two cases:
“The preference complained of is alleged to be that the respondent allowed Thomas and Meservy, one of its creditors * * * to secure a judgment by default in the circuit court of Multnomah county, Ore.; allowed said creditor to secure an execution on the judgment on all of the respondent’s timber lands. * * *
“In the amended petition, however, the creditors attempted to set forth an additional act of bankruptcy. They alleged, in substance, that the respondent suffered judgment to be entered against it in favor of the Pacific Coast Credit Association on September 21, 1929; that said judgment was entered on the docket of the circuit court of Clatsop county * * *; and that a sale under execution out of said court was had. * * *
“It will be seen that both judgments against the alleged bankrupt were docketed and therefore, according to the law of Oregon, became valid liens, long before the four-month period had commenced to nm. Section 2-1601, Oregon Laws, 1930 Compilation.” [Italics our own.] 51 F.2d at pages 341, 342.
There is no suggestion in that case that any personalty was seized in the executions, there levied. In fact, the record is affirmatively otherwise. The opinion itself, as we have seen, states that the first execution was on timber lands; and the transcript in that case discloses that the amended petition alleged that, in the Pacific Coast Credit Association litigation, the respondent “permitted execution to issue out of said circuit court and a large amount of real property, to wit, more than A50 acres,, to be sold under said execution,” etc.
Thus we see at once that the case most relied ttpon by the appellee does not apply to the situation here presented.
It is interesting to note that the learned judge below at first adopted a view of law which was in accord with our conclusions herein, and that counsel for the appellee agreed with him. This can be gleaned from the following colloquy:
“The Court. Under your theory automatically when her judgment was secured it became a lien upon her real property.
“Mr. Casey. Yes.
“The Court. All right. But if it did not become a lien on her personal property, the mere fact that the lien was impressed on her real property would not destroy or would not be the starting point for the rights as to a lien on personal property which could not arise until a levy later on.
“Mr. Casey. I agree with you there.” [Italics our own.]
But counsel proceeded “to go a step further” and to attempt to construe the legal philosophy upon which the clause in question is based. Since we have already fully set forth the appellee’s contentions, it is-not necessary to summarize them further. Suffice it to say, we believe that at that point counsel fell into error, and carried, the learned judge with him.
Accordingly, we hold that the court below should have accepted the appellants’ offer of proof, and should have permitted them to introduce evidence tending to show that, within the statutory four-month period, the appellee, while insolvent, permitted a judgment creditor to levy upon her personal property and failed to discharge the lien thus acquired within thirty days from the date thereof or at least five days before the date of sale.
The judgment is reversed and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion.
Reversed and remanded.
At random, we may mention:
California (C.C.P.1931, § 674; C.C. § 3057; Johnson v. Gorham, 6 Cal. 195, 65 Am.Dec. 501; Balzano v. Traeger, 93 Cal.App. 640, 643, 644, 270 P. 249; 11 Cal.Jur. § 24, p. 69, and 15 Cal.Jur. § 235, pp. 217-218);
Florida (Claude D. Reese, Inc., v. United States, 5 Cir., 75 F.2d 9);
Michigan (3 Compiled Laws 1929, § 14541 and annotation thereto);
New York (In re New Lots Sash & Door Corporation, D.C., 3 F.Supp. 570; Elkay Reflector Corporation v. Savory, Inc., 2 Cir., 57 F.2d 161, 162; New York Civil Practice Act, § 679);
Oregon (Code of 1930, § 2-1601).
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_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America and Kenneth J. Kalemba, Special Agent, Internal Revenue Service, v. AMERADA HESS CORPORATION, Appellant.
No. 79-1317.
United States Court of Appeals, Third Circuit.
Argued Oct. 19, 1979.
Decided Jan. 18, 1980.
Stuart K. Radick, Kelsey, Kelsey & Rad-ick, Trenton, N. J., Robert G. Morvillo (argued), Maurice M. McDermott, Obermaier, Morvillo, Abramowitz & Fitzpatrick, New York City, Roger B. Oresman, Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York City, for appellant Amerada Hess Corp.
Robert Del Tufo, U. S. Atty., Newark, N. J., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Charles E. Brookhart, R. Bruce Johnson (argued), Attys., Tax Div., Dept. of Justice, Washington, D. C., for appellees.
Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and ZIEGLER, District Judge.
Honorable Donald E. Ziegler, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OP THE COURT
GIBBONS, Circuit Judge.
Amerada Hess Corporation (Amerada) appeals from a final order of the district court directing enforcement, pursuant to 26 U.S.C. §§ 7402(b), 7604(a) (1967), of two Internal Revenue Service (IRS) summonses. Amerada resisted enforcement: (1) because the summonses were issued for an improper criminal investigative purpose; and (2) because one summons sought information protected by the attorney-client privilege and the work product rule. The district court rejected these contentions. We affirm.
I. Pre-Enforcement Proceedings
In May 1975, a revenue agent of the Audit Division (presently the Examinations Division) of IRS commenced a civil audit of the federal tax returns of Amerada for the tax years 1972 through 1974. The IRS investigation coincided with what was apparently a much larger investigation of certain activities of major corporations, involving possible corporate payments to foreign officials and citizens which were suspected of having been improperly treated by the corporations on their tax returns. Simultaneously, the Securities Exchange Commission had filed lawsuits against several major corporations, three of which, like Amer-ada, were oil companies, alleging the failure of the corporations to disclose improper foreign payments. Amerada’s outside counsel, Milbank, Tweed, Hadley & McCloy (Mil-bank), advised Amerada to conduct an internal investigation to inform the corporate management of any such foreign payments Amerada might have made. In April 1976, Amerada established a special internal investigative committee, consisting of four outside directors, for which Milbank conducted a series of interviews of Amerada officers and employees. Upon completion of this internal investigation, the special committee filed its report with Amerada’s board of directors. The committee’s report revealed what were termed as “questionable practices,” including payments and gifts to local officials, political candidates, and foreign officials, totalling approximately $12,000. In that section of the committee’s report to the board of directors which dealt with the procedure of the investigation it was reported that fifty of Amerada’s officers and employees had been interviewed by Milbank. The committee’s report indicated in a footnote that a list of the names of the persons interviewed was attached. For some reason, however, the list was not attached to the report and the footnote was not corrected. It is not disputed that such a list was in fact included with the report of Milbank to the special committee and is in Amerada’s possession. Amerada furnished the revenue agent with a copy of the special committee report to its board of directors, but not with the Milbank report to the committee or the list of persons Milbank had interviewed. Amerada also furnished the revenue agent with answers to eleven standard questions which the IRS had formulated and addressed to major corporations seeking information about improper payments.
In June 1977, as a result of the information in the special committee report and of Amerada’s answers to the eleven questions, the revenue agent suspended his examination and made a fraud referral to the Intelligence Division of IRS, now designated the Criminal Investigation Division. Special Agent Kenneth J. Kalemba was assigned to join the Amerada case to investigate possible criminal violations of the Internal Revenue Code in addition to civil liability for unpaid taxes and penalties. Kalemba, after evaluating the Audit Division’s reference, requested, and received, from his superior in the Intelligence Division permission to open a file on Amerada.
On September 5, 1977, Special Agent Ka-lemba, his Intelligence Division supervisor John Kuper, and William Huntley of the Audit Division, met with representatives of Amerada, including counsel. In this meeting the Amerada representatives were told by representatives of the IRS that the civil audit would, if Amerada preferred, be suspended pending Kalemba’s criminal investigation, but that if Amerada preferred to have the civil audit continue document requests made by the revenue agent and those made by the Special Agent would be separately identified. During the meeting Special Agent Kalemba requested a list of documents. The list was prepared by him and not by the revenue agent. Amerada’s counsel requested time to consider the request. Some time after the September meeting a representative of Amerada informed Kalemba that before it would respond to his document request it wished to seek review by higher authorities in the IRS of the decision to initiate a criminal investigation. In October 1977, Amerada’s counsel asked David E. Gaston, Chief of the IRS Criminal Tax Division, to review the matter. Mr. Gaston referred the request to the Chief of the Intelligence Division, who in turn referred it to the District Director of the Newark District. A meeting with the District Director in Newark was scheduled for mid-January 1978. Before it took place Special Agent Kalemba issued the two summonses for which enforcement is sought. They require production of the same documents Kalemba requested at the September 5, 1977, meeting. One summons asks for production of the list of names of persons interviewed by Milbank on behalf of the special committee. The second asks for nine categories of Amerada corporate documents. Amerada resisted enforcement of both summonses as issued for an improper criminal purpose, and of the first as requiring the production of protected materials.
II. Enforcement Proceedings
When Amerada refused to comply with the summonses the United States and Special Agent Kalemba filed a Section 7402(b) and 7604(a) complaint and obtained an order directing Amerada to show cause why it should not be ordered to comply. Amerada filed an answer and opposing affidavits. It also served on IRS employees subpoenas duces tecum for the production of the entire case file of the Intelligence Division for the tax years in issue, and notices of deposition of various IRS employees. The government moved to quash the subpoenas and for a protective order with respect to the depositions. The trial court permitted a deposition of Special Agent Kalemba. It reserved determination of the motion to quash subpoenas, requiring that the witnesses on which they were served remain available for a hearing on the order to show cause. At that hearing Special Agent Kalemba testified and was extensively cross-examined. His testimony establishes that the IRS decision to open a criminal investigation was made as a result of the disclosures in the special committee report to Amera-da’s board of directors, that the revenue agent’s audit was suspended at the time the IRS summonses were issued, that the information sought is not in possession of the IRS, that it is information relevant to the purpose of determining Amerada’s tax liability, and that because such tax liability had not yet been determined he had not yet decided whether or not to recommend prosecution. The court also heard the testimony of two other persons: revenue agent Caputo of the Audit Division, who testified that a civil audit of Amerada for the years in question was incomplete; and Roger B. Oresman, an attorney with Milbank, and a member of the Amerada special committee, who testified primarily about the creation of the special committee and the manner in which Milbank conducted an investigation on its behalf. Oresman’s testimony established that the list of interviewees, which is the subject of the first IRS summons, was annexed to a report by Milbank to the special committee. Finally, the trial court examined, in camera, the Intelligence Division file on Amerada.
The trial court held that no additional discovery was appropriate in order to rule on Amerada’s LaSaile-Genser objection, that the objection was meritless, and that neither the attorney-client privilege, nor the work product rule, prevented disclosure of the list of interviewees.
III. The LaSaile-Genser Objection
In United States v. Genser, 595 F.2d 146, 152 (3d Cir. 1979) (Genser II) this court discussed the circumstances in which a taxpayer would be entitled to discovery against the government in order to meet the burden of overcoming the presumption of validity applicable to an IRS summons issued prior to a recommendation of prosecution. We held:
At a minimum, the taxpayer should be entitled to discover the identities of the investigating agents, the date the investigation began, the dates the agent or agents filed reports recommending prosecution, the date the district chief of the Intelligence Division or Criminal Investigation Division reviewed the recommendation, the date the Office of Regional Counsel referred the matter for prosecution, and the dates of all summonses issued under 26 U.S.C. § 7602. Furthermore, the taxpayer should be entitled to discover the nature of any contacts, relating to and during the investigation, between the investigating agents and officials of the Department of Justice.
Where this information or other evidence introduced by the taxpayer reveals (1) that the IRS issued summonses after the investigating agents recommended prosecution, (2) that inordinate and unexplained delays in the investigation transpired, or (3) that the investigating agents were in contact with the Department of Justice, the district court must allow the taxpayer to investigate further. In proper cases, this investigation could include the opportunity to examine the IRS agents or officials involved, or to discover documents. Such examination/discovery, however, should be carefully tailored to meet the purpose of the inquiry. On the other hand, where this information indicates that none of these three conditions are present, the district court need inquire no further.
In this case Amerada knew the identities of the investigating agents, the date their investigation began, and the fact that no recommendation for prosecution had yet been made. It deposed Special Agent Kalemba, and neither in his deposition, nor in cross-examination, was any information elicited suggesting any communication between the IRS agents and the Department of Justice. The only evidence of delay in the. investigation is delay occasioned by Amerada’s effort to have it terminated. We are dealing with summonses issued prior to the time the investigating agents made a determination on prosecution. Under Genser II the trial court’s conclusion that no further discovery was in order was a permissible exercise of its discretion. See also United States v. Serubo, 604 F.2d at 813.
Amerada contends that it has shown an improper purpose because the summonses were for information sought by Special Agent Kalemba, not by the revenue agent in charge of the audit. It argues that the IRS had made an institutional decision to divide its investigation into separate civil and criminal segments, and that as a matter of law any summonses issued at the behest of the special agent conducting the criminal segment must be improper. That argument proves too much. Clearly the IRS has, in all cases, made an institutional decision to divide its investigations into civil and criminal segments. The very existence of separate Examinations and Criminal Investigation Divisions demonstrates such a decision. But the fact that summonses are issued for criminal enforcement purposes is not dispositive. The use of summonses after the abandonment of a civil purpose is the evil against which the LaSalle-Genser rule guards. It is undisputed that Amerada’s civil liability is still an open question. See United States v. Garden State Nat. Bank, 607 F.2d at 65 n.3, 73.
Amerada also contends that it has shown the absence of any civil purposes, because the report of the special committee shows only $12,000 in questionable expenditures, while in the years in question it paid $57.50 million in federal income taxes. From the de minimus nature of the possible civil liability for additional taxes it would have the trial court conclude that only criminal prosecution, not tax liability, was the IRS institutional posture. The trial court declined to draw that inference, observing that while the report of the special committee discussed only $12,000 in questionable expenditures, the IRS was entitled to make its own evaluation of the utility of a more thorough inquiry. Certainly, the special committee’s report was in the institutional view of IRS no less self-serving than Amer-ada’s original tax returns.
Thus, we conclude that the taxpayer failed to meet the burden of overcoming the presumption of validity attaching to these two pre-recommendation subpoenas. That conclusion disposes of the challenge to the summonses seeking the company documents listed in footnote 1, supra. Amerada does not contend that any privilege or work product rule applies to them.
IV. Claims of Privilege
The first summons, however, calling for the list of persons interviewed by Milbank on behalf of the special committee, is resisted on privilege and work product rule grounds to which we now turn.
A. Attorney-Client Privilege
As noted above, Mr. Oresman’s testimony established that Milbank prepared a report for the special committee. The IRS does not seek that report. Annexed to it, however, was a list of the Amerada employees who were interviewed by Milbank. Amera-da contends that the annexed list was an integral part of a communication from its attorney giving it legal advice. The trial court rejected that contention on two grounds. It ruled: that the attorney-client privilege was inapplicable to communications from the attorney to the client; and that the list was, in any event, not a privileged communication. While we disagree with the trial court on the first ground, we conclude that it was correct on the second.
Although the full report from Mil-bank to the special committee is not before us, the record suggests that it was in the nature of legal advice or opinion to persons in Amerada’s management authorized to seek and act upon such advice or opinion. Legal advice or opinion from an attorney to his client, individual or corporate, has consistently been held by the federal courts to be within the protection of the attorney-client privilege. Mead Data Central, Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 362 n. 25, 566 F.2d 242, 254 n. 25 (D.C. Cir. 1977); Garner v. Wolfinbarger, 430 F.2d 1093, 1096 n. 7 (5th Cir. 1970), cert. den. sub nom., Garner v. First Amer. Life Ins. Co., 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (1971); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956); 8 in 1 Pet. Products, Inc. v. Swift & Co., 218 F.Supp. 253 (S.D.N.Y.1963); Georgia-Pacific Plywood Co. v. United States Plywood Corp., 18 F.R.D. 463, 464 (S.D.N.Y.1956). Two reasons have been advanced in support of the two-way application of the privilege. The first is the necessity of preventing the use of an attorney’s advice to support inferences as to the content of confidential communications by the client to the attorney. 8 Wigmore on Evidence § 2320 (McNaughton Rev. 1961). The second is that, independent of the content of any client communication, legal advice given to the client should remain confidential. See United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1978), cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1979). To the extent that the trial court predicated its ruling on the general inapplicability of the privilege to communications from the attorney to the client we disapprove of it.
We agree, however, with the court’s alternative holding with respect to the list of interviewees. Neither of the usually advanced reasons for the application of the privilege applies to that list. Certainly the list, itself, is not legal advice, and Amerada does not so contend. It does urge, however, that the list can support an inference as to the contents of a confidential communication from Amerada to the attorney. That argument is foreclosed by our recent decision in In re Grand Jury Investigation (Sun Company, Inc.), 599 F.2d 1224 (3d Cir. 1979). In that case we adopted for this circuit Judge Kirkpatrick’s control group test as to what communications by corporate officers to corporate counsel are covered by the attorney-client privilege. Applying that test to questionnaires and memoranda compiled by a law firm in the course of an investigation into possible illegal payments made by Sun’s employees in connection with its foreign operations, we held that because the interviewed employees were not members of the relevant control group the contents of their communications to counsel were not protected by the attorney-client privilege. 599 F.2d at 1237. In so ruling, Chief Judge Seitz, for the court, relied upon Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947), which held that the results of an attorney’s investigation in preparation for litigation, and in particular, the results of his interviews with employee witnesses, were protected only by the qualified work product rule, not by the absolute attorney-client privilege. Obviously, both in Hickman v. Taylor and in Sun Company, Inc. disclosure of the witness’ statements necessarily disclosed that someone in sufficient authority to deal with the attorney had informed him which employees might have knowledge of relevant facts. The list itself gives no clue as to what anyone in the Amerada control group told Milbank about any potential witness. A rule permitting disclosure of the statements, but preventing disclosure of the list of potential witnesses, would advance none of the purposes of the attorney-client privilege. Indeed, the client could be asked in an appropriate proceeding to disclose the names of all persons who might have relevant information. Such an inquiry could not be foreclosed by the stratagem of making up such a list beforehand and furnishing it to the attorney. Amerada responds that an IRS summons for documents cannot compel a taxpayer to create a new document in response to that summons. While that may be so, it really doesn’t enlighten on the subject of privilege. There is an extant list, and that list contains no information that can be maintained in confidence. Amerada employees could be summonsed pursuant to section 7602(2), 26 U.S.C. § 7602(2) (1976), to give testimony under oath. The suggestion that the court should have denied enforcement of the summons for the list, and relegated IRS to a summons for testimony in which the same names must be disclosed is entirely too formalistic to be taken seriously. The trial court did not err in holding that the list was not the kind of communication protected by the attorney-client privilege.
B. Work Product
Amerada also resisted production of the list attached to its report to the special committee as protected work product. The government urged that the work product protection of Hickman v. Taylor was solely a limitation on pretrial discovery, not a qualified evidentiary privilege, and that it was, therefore, wholly inapplicable to IRS summons enforcement proceedings. There is a split of circuit court authority on whether the work product rule applies to IRS investigations. See United States v. Nobles, 422 U.S. 225, 247 n. 6, 95 S.Ct. 2160, 2167 n. 6, 45 L.Ed.2d 141 (1975). Compare United States v. Upjohn Co., 600 F.2d 1223 (6th Cir. 1979) (work product doctrine is not applicable to section 7602 summonses); and United States v. McKay, 372 F.2d 174, 176 (5th Cir. 1967) (Maris, J., application of work product rule to IRS summons proceedings doubted), with United States v. Brown, 478 F.2d 1038, 1040-41 (7th Cir. 1973) (work product applies to section 7602 summons). This court has not previously passed upon the question, but the trial court assumed that we would agree with the holding in United States v. Brown that the rule applied. Although we have not answered the question of applicability of the work product rule to section 7602 cases, Sun Company, Inc., 599 F.2d 1224, is so closely analogous that it must be deemed controlling. In that case we held that work product protection could be claimed in a grand jury investigation. The government’s argument for its inapplicability to IRS summons proceedings is predicated upon the inquisitorial, rather than adversarial, nature of those proceedings. Grand jury investigations are equally inquisitorial, and the interest of the federal government in discovering instances of violations of the criminal law is at least as great as its interest in discovering amounts due to it under the Internal Revenue Code. It would be quite anomalous to hold that the work product rule applied to a grand jury inquisition, but not to an IRS section 7602 inquisition. We hold, therefore, that work product protection can be asserted in resisting enforcement of an IRS summons.
Sun Company, Inc., 599 F.2d 1224, also enlightens on the application of the work product rule to the summonsed list. Indisputably, the Milbank report qualifies as material prepared or collected in anticipation of possible litigation. 599 F.2d at 1228-29. Indisputably, also, the protection is qualified, and demands a particularized determination with respect to each piece of information sought. 599 F.2d at 1230-31, 1232-33. Thus, neither the fact that the list was compiled by Milbank, nor the fact that it was attached to a report prepared in anticipation of possible litigation is dispositive. Rather, application of the rule depends upon the nature of the document, the extent to which it may directly or indirectly reveal the attorney’s mental processes, the likely reliability of its reflection of witness’ statements, the degree of danger that it will convert the attorney from advocate to witness, and the degree of availability of the information from other sources. 599 F.2d at 1231.
In this case the list of interviewees is just that, a list. It does not directly or indirectly reveal the mental processes of the Milbank attorneys. It furnishes no information as to the content of any statement. There is no realistic possibility that its production will convert any member of the Milbank firm from advocate to witness. None of the policy reasons for protection of work product, other than the fact of its initial compilation by Milbank, applies. It is true, as we point out in the discussion of the attorney-client privilege, that the IRS could compile its own list by taking witness testimony. Possibly it could compile a similar list as a result of field work. Thus the need for production of the list is not as compelling as was the need in Sun Company, Inc. for the production of the statement of a deceased Sun employee. But as Chief Judge Seitz in that case makes clear, application of the qualified work product protection involves a balancing of competing considerations. Where, as here, the work product in question is of rather minimal substantive content, and presents none of the classic dangers to which the Hickman v. Taylor rule is addressed, the government’s showing of need can be comparatively lower. Avoidance of the time and effort involved in compiling a similar list from other sources is, in this case, a sufficient showing of need. The district court did not err in concluding that, while the work product rule applied in IRS summons enforcement cases, and the list was work product, the qualified protection in this instance yielded to the IRS’s need to get on with its investigation.
V. Conclusion
The order appealed from, directing Amer-ada to comply with two IRS summonses served on it on January 12, 1978, will be affirmed in all respects.
. The second summons requests:
1. All documents and records relating to payments by taxpayer of $613 in 1973, and $718 in 1974, to Husseim Awadba, a resident of Abu Dhabi.
2. All documents and records for purchases of pen and pencil sets ($748), vases, ashtrays, and crystal ($1,158), and a television set ($1,200) made by taxpayer and given to government employees of Abu Dhabi.
3. All documents and records for payments made by taxpayer totalling $2,485 in 1972, $2,810 in 1973, and $2,545 in 1974 to members of the local fire and police departments that were recorded as cleaning services.
4. The aircraft records or log books of taxpayer’s airplanes, showing arrivals, destinations, passengers, and purposes of trips on several specific days during 1971 through 1974.
5. All employment contracts or agreements between taxpayer and Azar-Pey and Chadami-Navai, both Iranian government officials, all documents and records relating to payments made to them, and all executive files and inter-departmental memoranda pertaining to their employment by taxpayer for the years 1972, 1973, and 1974.
6. All documents and records pertaining to taxpayer’s contributions to U. S. Virgin Islands Congressional Delegate DeLugo, the Julia Butler Hansen for Congress Committee, and Virgin Islands Senator Rouss, all in 1972.
7. All employment contracts or agreements between taxpayer and Dr. Raymond Burneo, Ecuadorian Ambassador to West Germany, as well as all documents and records relating to payments to him for 1972, 1973, and 1974.
8. All employment contracts or agreements between taxpayer and J. Yagchi, a resident of Abu Dhabi, as well as all documents and records pertaining to payments made to him during the years 1972, 1973, and 1974.
9. All documents and records pertaining to an entry totalling $1,250,000 by the Hess Oil Virgin Islands Corporation which was categorized as contributions and donations to the Virgin Islands Government by the Hess Oil Virgin Islands Corporation in 1973.
. See United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); United States v. Garden State Nat. Bank, 607 F.2d 61 (3d Cir. 1979); United States v. Serubo, 604 F.2d 807 (3d Cir. 1979); United States v. Genser, 595 F.2d 146 (3d Cir. 1979) (Genser II); United States v. Genser, 582 F.2d 292 (3d Cir. 1978) (Genser I).
. See United States v. Brown, 536 F.2d 117 (6th Cir. 1976). But see United States v. Rosinsky, 547 F.2d 249 (4th Cir. 1977). The question is pending before the Supreme Court in United States v. Euge, 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1044 (1979), on certiorari from the en banc decision of the Eighth Circuit in United States v. Euge, 587 F.2d 25 (8th Cir. 1978).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1sect
|
1343
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Lloyd McCOMY, Appellant, v. UNITED STATES of America, Appellee.
No. 74-1946.
United States Court of Appeals, Eighth Circuit.
Submitted March 12, 1975.
Decided April 7, 1975.
Jack J. Cavanaugh, St. Louis, Mo., for appellant.
Richard Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before GIBSQN, Chief Judge, CLARK, Associate Justice, Retired, and LAY, Circuit Judge.
Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.
PER CURIAM.
The defendant Lloyd McComy entered a guilty plea to three counts of a twenty-three count indictment charging him with fraud in violation of 18 U.S.C. § 1348. He was sentenced to a total prison term of seven years to be followed by a five-year probation term and a fine of $3,000.00. He filed a § 2255 motion contending that his plea of guilty was not voluntary. The district court denied relief and he has appealed. We affirm.
The thrust of petitioner’s argument, as we understand it and we are not sure we do, is that his plea is not voluntary since the bargain (i. e., the dismissal of the other twenty counts along with the promise of the three-year sentence) was not fully spread upon the record with the trial judge. The argument couched in these terms was not raised in the district court since the only alleged misrepresentation before the trial judge was as to the length of the sentence.
The government contends that Rule 11, Fed.R.Crim.P., was fully complied with by the district court. The record shows the district court (a) questioned the defendant concerning his understanding of his rights, (b) advised him of the consequences of his plea, (c) asked if the defendant had been induced to enter his plea by any threats or promises, and (d) established a factual basis for the plea. The defendant urges, however, that in addition to soliciting the above information, the court must also ascertain whether a plea bargain has been made, and if so, its terms.
We find no deficiency in the record in this regard. The record shows the district court was fully aware that the government intended to ask leave to dismiss twenty counts of the indictment at the time of the defendant’s sentence. In addition, the trial judge asked what was to be done with two co-defendants and the United States Attorney replied that the government intended to dismiss the charges against them.
The court specifically asked the appellant whether any other promises or inducements, particularly with regard to sentencing, had been made to him and he responded with equally concise and specific negative answers. At the evi-dentiary hearing on this motion, the court listened to the testimony of the defendant, the defendant’s wife, his attorney at the time the plea was entered and his attorney’s associate.. On the basis of their testimony, the court concluded that no promise as to the length of sentence was ever made. We are bound by this finding unless we can say that it was clearly erroneous and the record does not support this. Therefore, we find to the extent that any “plea bargain” had been made, its terms including the dismissal of the remaining twenty counts of the indictment and the dismissal of charges against the two co-defendants, were fully disclosed in open court.
Judgment affirmed.
. In United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974), this court observed:
Plea bargaining is susceptible to abuse. Its proper use, however, has been tacitly approved by the Supreme Court, this Court and many study commissions that have reviewed the problem. While a recent report has recommended that plea bargaining be abolished by 1978, we are not prepared to adopt that recommendation.
We caution, however, that if plea bargaining is to be practiced, the requirements of Rule 11, as explicated by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), must be followed. Furthermore, the following safeguards must also be implemented:
* * * * * *
(2) Judges are to require the agreement to be disclosed in open court at the time the plea is offered and require that the reasons for reaching the agreement be set forth in detail. 488 F.2d at 640 (footnotes omitted).
. Whenever the United States “bargains” to dismiss other counts of the indictment in exchange for a plea of guilty to one or more counts, this of course should be spread on the record at the time of the guilty plea. When this appears, it is essential that the trial judge determine that the guilty plea independently rests on a factual basis and is not simply induced by the government’s promise to dismiss other counts.
. The following colloquy took place between the court and the defendant:
THE COURT: And you understand, do you, the charges to which you have pleaded “Guilty” and which I have gone over in detail here?
MR. McCOMY: Yes, sir.
THE COURT: The range of penalties for these offenses could be a fine of $1,000.00 or five years’ imprisonment on Count I; a fine of $1,000.00 and imprisonment of five years on Count II; a fine of $1,000.00 and imprisonment for five years on Count III; or a total of $3,000.00 and fifteen years, or some combination of it. That’s the maximum. Do you understand that?
MR. McCOMY: Yes, Your Honor. THE COURT: Have any threats or promises been made to induce you to plead “Guilty”?
MR. McCOMY: No, sir.
THE COURT: You understand, do you, that I have the sole responsibility for imposing sentence in the event a sentence is imposed, and I have not promised Mr. Daly or Mr. Adelman or anybody else, and particularly you, anything in regard to this case?
MR. McCOMY: I understand, Your Honor. THE COURT: I do not know what sentence you will receive until such time as a pre-sentence report is given to me.
Do you think there is any understanding, or have any predictions been made to you concerning — -either by Mr. Daly or by anybody else either representing themselves to be from the Government or being from the Government, as to the sentence you will receive?
MR. McCOMY: No, sir.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_realresp
|
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.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
WES CHAPTER, FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION, AFL-CIO, Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees.
No. 16697.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 5, 1962.
Decided Nov. 15, 1962.
Mr. Isaac N. Groner, Washington, D. C., with whom Messrs. I. J. Gromfine, Washington, D. C., Herman Sternstein, New York City, and William B. Peer, Washington, D. C., were on the brief, for appellant.
Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellee National Mediation Board and certain other appellees. Mr. David C. Acheson, U. S. Atty., and Messrs. Nathan J. Paulson and Harold D. Rhynedance, Jr., Asst. U. S. Attys., at the time the brief was filed, were on the brief for appellee National Mediation Board and certain other appellees.
Mr. Tim L. Bornstein, Washington, D. C., for appellee Second Officers’ Association.
Mr. Donald K. Hall, Los Angeles, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Messrs. L. Welch Pogue, Washington, D. C., and Hugh W. Darling, Los Angeles, Cal., were on the brief, for appellee, Western Air Lines, Inc. Messrs. Calvin Davison and Robert H. Shorb, Washington, D. C., also entered appearances for appellee Western Air Lines, Inc.
Before FAHY, BASTIAN and BURGER, Circuit Judges.
FAHY, Circuit Judge.
The action in the District Court was to obtain a decree vacating orders, rulings, and the direction of an election made by the National Mediation Board, and for a declaratory judgment and injunctive relief. The plaintiff, now appellant, is WES Chapter, Flight Engineers International Association, AFL-CIO, hereinafter referred to as “the Association” or “the Union”. The District Court dismissed the action for failure to state a claim upon which relief could be granted. The court also granted the Board’s cross motion for summary judgment.
The Board proceedings under attack were held pursuant to Section 2, Ninth, of the Railway Labor Act, 48 Stat. 1186 (1934), 45 U.S.C.A. § 152 (Supp.1961), providing that “[i]f any dispute shall arise among a carrier’s employees as to1 who are the representatives of such employees”, the Board shall investigate-the dispute, conduct a secret ballot and’ then certify who or what organization is-to represent the employees of the carrier. And “[i]n the conduct of any election * * * the Board shall designate who may participate in the election and establish the rules to govern the election * *
A certifying election wa.s held by the Board with the result that the Second Officers’ Association,- to which we shall refer as SO A, replaced the Association, as the designated representative of the flight engineers of Western Airlines, the employer. The Board excluded from the voting flight engineers who were members of the Association. The first contention of the Association is that such exclusion violated the Board’s own Rule 6.
Tlie second claim is that the Board deprived appellant of due process of law by not investigating fully the. charge that SOA was dominated and assisted by the employer.
On the claim of eligibility the following are the essential facts. One hundred twenty three flight engineers, then represented by the Association, walked off their jobs at Western in February 1961, as part of a general walkout of flight engineers at a number of air lines, growing out of a dispute at United Air Lines. The day after the walkout the men in effect were ordered by the United States District Court for the Southern District of California to return to work and failed to do so. Upon their refusal to accept normal work assignments Western terminated the employment of the 123, obtained replacements in large part and refused to take back those who had declined the work assignments. Nine of these unsuccessfully appealed under the procedures of the collective bargaining agreements between Western and the Association. Six of the nine then unsuccessfully appealed to the Vice President-Operations of Western. The other three did not file .second appeals and are claimed by Western to have abandoned their cases. Western also claims that none appealed to the System Board of Adjustment in accordance with another agreement between the Association and Western, and that Western’s action in terminating the employment of the 123 flight engineers became final on or about May 19, 1961, under the terms of the collective bargaining agreement. In the meanwhile, when the walkout ended on the other air lines a few days after it began, a Presidential Commission was set up to consider the issues involved, and a back-to-work agreement was reached, which, however, Western did not accept. This agreement pledged the air lines which did accept it to take no disciplinary action against the flight engineers. Those represented by the Association promptly offered to return to work, but Western would not take them back. In April, following the February walkout and the replacements at Western, SOA claimed to represent the flight engineers employed by Western. It initiated the Board proceedings under section 2, Ninth, and it was in the ensuing election that the flight engineers for whom the Association speaks were not permitted to vote.
The need for a large degree of conclusiveness in the settlement of labor disputes over the question of employee representation in the transportation industry was met by Congress in the Railway Labor Act. Responsibility was given to a board with special competence, in the effort to maintain enough harmony to prevent interruption of service. Congress sought to preclude litigation in the courts over what the Supreme Court has called an “explosive problem.” Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943). The Court said Congress had taken “great pains” to protect the Mediation Board in its handling of the problem. Consequently the courts have seldom intruded. Switchmen’s Union has been followed in a line of cases which include our recent decisions in UNA Chapter, etc. v. National Mediation Board, supra, and Air Line Stewards and Stewardesses Ass’n v. National Mediation Board, 111 U.S.App.D.C. 126, 294 F.2d 910 (1961), cert. denied, 369 U.S. 810, 82 S.Ct. 687, 7 L.Ed.2d 611 (1962). And see Air Line Dispatchers Ass’n v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685 (1951).
Where courts have taken jurisdiction of such representation disputes the context has strongly indicated either that the Board by refusing to act had obliterated rights granted to employees by Congress or, turning now to a situation arising under the National Labor Relations Act, the Board had acted in excess of .its delegated powers and contrary to a statutory provision which' is “clear and mandatory.” Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). When this occurs, the courts “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Id. at 190, 79 S.Ct. at 185.
Viewed against this background the two questions raised by appellant do not enable the courts to assume jurisdiction. As to eligibility, it is clear the Board made a determination that the excluded engineers were not eligible under Rule 6 to vote in the certifying election. The Board has not refused to act on the one hand, nor has it exceeded the express commands of Congress on the other. In the face of strong Association challenge on this point it might have been preferable for the Board to have delineated more fully its determination — making clear whether, for example, the excluded men were “dismissed” within the meaning of Rule 6 or had merely quit ; and whether if dismissed their reinstatement applications were pending before “proper authorities.” However that may be, the challenge by appellant does not go beyond asking for a different solution to a mixed factual and legal issue which has been solved by the Board in a manner not clearly contrary to its statutory, including its rule-making, authority. Switch-men’s Union and related cases cited above; cf. Order of Ry. Conductors of America v. Penn. R. R., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154 (1944), where in the face of allegations of “illegal” action ■on part of the Board but with the absence of the Board from the case the Court failed to reach the question of the propriety of judicial relief.
The second question must be decided in a similar manner. The Association charged that SOA was assisted and dominated by the employer in violation of section 2, Third and Fourth, of the Act. The Board held a hearing on these charges, taking pertinent testimony but declining, because of lack of power, to compel attendance of certain witnesses requested by the Association. The statute, in Section 2, Ninth, requires an “investigation” of such disputes; and the Board, it seems to us, did investigate. In a different case, where, for example, a stronger showing is made initially by the charging party than was made here, the Board might be required to make a more independent investigation into a charge of company assistance to an opposing union seeking certification. But in discharging its duty to investigate in the manner it did in this case we find no official conduct in excess of authority and no refusal to bring the processes of the Board to bear in a reasonable manner on the dispute. Accordingly we do not think the District Court acquired jurisdiction to upset the Board’s ruling that the Association’s charges were without merit.
It remains only to be said that in our view the Board’s scope of authority under the statute, and its exercise, preclude a successful challenge that the Association’s constitutional rights were violated. “[T]he requirements of due process * * * vary with the type of proceeding involved.” Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 (1959). And “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Id. at 442, 80 S.Ct. at 1515. Due process of law would not appear to require more in the circumstances than was accorded appellant.
The order of the District Court dismissing the complaint is
Affirmed.
. This rule reads as follows:
“Dismissed employees whose request for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at the time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.”
. The Association states that the .walkout occurred because of, or as a protest against, a Board decision adverse to an-, other chapter of the same union, upheld by this court in UNA Chapter, Flight Engineers’ Int’l Ass’n, AFL-CIO v. National Mediation Board, 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. denied, 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962).
. Air Line Dispatchers Ass’n v. National Mediation Board, supra.
. Judge Hall of the United States District Court for the Southern District of California in Flight Engineers’ International Association v. Western Air Lines, Inc., Civil Action No. 362-61 PH, stated in his oral opinion that the flight engineers had “simply quit their jobs.”
. The Board itself states that at the time of the proceedings before it, which began April 5, 1961, no “valid” appeal for reinstatement was pending before any official of Western or before the System Board of Adjustment. But the Association claims it then had a counterclaim pending in the District Court in California,- demanding restoration and reinstatement, a claim for reinstatement before the System Board of Adjustment, and a similar claim before the Presidential Commission.
. “While the Mediation Board is given specified powers in the conduct of elections, there is no requirement as to hearr ings. And there is no express grant of subpoena power.” Switchmen’s Union,' supra, 320 U.S. at 304, 64 S.Ct. at 98.
. The Board found “no fact was established from which even an inference — to say nothing of a conclusion — can be drawn” supporting the charges.
. The charges of employer assistance were made on “information and belief” and were only general in nature. At the hearing the original charges were not made more specific or detailed. Furthermore, representatives of both SOA and the employer were present at the hearing, which was held by one member of the Board. The full Board reviewed the transcript of the hearing and examined copies of SOA’s minutes.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
|
songer_mootness
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that an issue was moot?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CMI CORPORATION, an Oklahoma corporation, Plaintiff-Appellee, v. LEEMAR STEEL CO., INC., an Ohio corporation, Defendant-Appellant.
No. 82-1538.
United States Court of Appeals, Tenth Circuit.
May 11, 1984.
Lisa Rabin McKenzie, Oklahoma City, Okl. (Kenneth I. Jones, Jr., Oklahoma City, Okl., with her on briefs) of Eagleton, Nicholson, Jones & Blaney, Oklahoma City, Okl., Attys., for defendant-appellant.
Rhonda Reynolds, Oklahoma City, Okl. (G. David Bryant and Thomas G. Blakley, Oklahoma City, Okl., with her on brief) of Linn & Helms, Oklahoma City, Okl, for plaintiff-appellee.
Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.
BARRETT, Circuit Judge.
Leemar Steel Company (Leemar) appeals from a final judgment entered in favor of CMI Corporation (CMI) after trial to the court. CMI initiated this action seeking cancellation of a contract with Leemar and the return of money it had paid Leemar pursuant to the contract.
During the latter part of 1980, Leemar, an Ohio corporation, “went after” all the oil pump manufacturers to sell them its counterweight material. Daniel Malik, a Leemar salesman, initially contacted CMI, an Oklahoma corporation, on October 30, 1980, after finding CMI in the Dunn & Bradstreet Metalworking Guide. At that time Malik discussed Leemar’s program with Carroll Logan, CMI’s senior buyer. Thereafter CMI, at Malik’s request, sent Leemar blueprints for two of its counterweight inserts. The blueprints were for CMI part number 507-7505, an insert of two-inch thickness, and part number 507-7506, an insert of one-inch thickness. Each of the blueprints was identified as the property of CMI and set forth the CMI product number along with the notation “TOLERANCES FRACTIONAL DIMS. ± Vie .... ALL OTHER AS SHOWN.”
On February 20, 1981, after Leemar had reviewed CMI’s blueprints, Logan orally agreed with Jerry Martin, Leemar’s sales manager, to a contract for fifty (50) inserts of two-inch thickness, CMI part number 507-7505, and twenty-five (25) inserts of one-inch thickness, CMI part number 507-7506.
On February 23, 1981, CMI, per Logan, mailed Leemar its purchase order No. 122204A for the seventy-five inserts, noting on the order “CONFIRMATION ONLY — ORDER PLACED 2-20-81.” The purchase order also provided, inter alia:
2. Seller acknowledges that it has in its possession all applicable specifications and drawings ... and that such data are adequate to enable Seller to fairly determine its ability to perform.
* "i- * * * *
8. Seller warrants that all Articles will conform to applicable specifications, drawings, descriptions ...
25. ... The contract may be modified only in writing making specific reference thereto and signed by Buyer’s agent.
On February 27, 1981, CMI, at Leemar's request, sent Leemar a telegram confirming its purchase order number 122204A for the seventy-five inserts.
On March 23, 1981, the inserts were delivered to CMI. On March 25, 1981, CMI received Leemar’s invoice for the inserts. The invoice referenced CMI’s purchase order number and further provided: “50 Pcs/Part No. 507-7505; 2" Per Print” and “26 Pcs/Part No. 507-7506; 1" per print.” On March 28, 1981, Paul Smaglinski, manager of quality assurance for CMI, inspected the inserts. Subsequent thereto, and in accordance with Smaglinski’s instructions, a material rejection record was prepared for the inserts, noting that the inserts were too thick.
On April 13, 1981, Logan called Malik and related that CMI had a “problem” with the inserts. Within the next several days, Malik related his conversation with Logan to Martin “because he handles the problems a little better.” Logan also called Malik at a later date, during which they discussed the “partial solution” suggested by Malik, i.e., that CMI get a price on what it would cost to grind the inserts down and bring them within tolerances. A number of discussions were also held between Logan and Martin as to the possibility of having someone grind the inserts.
On April 24, 1981, CMI sent Leemar its check for $15,627.40, paying in full the purchase price of the inserts.
After the parties were unable, apparently, to find someone to grind the inserts, CMI requested Leemar to pick up the inserts, and return the purchase price. Lee-mar refused to pick up the inserts or refund the money and this lawsuit ensued. Within its complaint CMI alleged that although it had notified Leemar that it was rejecting the goods, Leemar refused to pick-up the goods or offer to return the purchase price. CMI further alleged that Leemar had breached express and implied warranties by failing to manufacture the inserts in accordance with the Vi«" tolerance set forth on its blueprint designs. Leemar moved to dismiss for lack of jurisdiction. Leemar subsequently withdrew its motion to dismiss and answered.
Within its answer Leemar denied that it had given CMI any express or implied warranties relative to merchantability or conformity for a particular use. Leemar also argued that all the inserts were within the specifications ordered by CMI.
At trial CMI established that the inserts were thicker than allowed by the blueprint specifications, and that the inserts were not usable by CMI because of their thickness and weight. Logan testified that he did not authorize Leemar, through Martin, to manufacture the inserts with a tolerance of Vi" rather than the Vie" tolerance set forth on the prints. Logan also testified that during the course of several conversations with Malik and Martin during May, June and July 1981, he was repeatedly told that Leemar was sending a truck to pick up the inserts, that a truck did not pick up the inserts, and that Martin had related that Leemar had not picked up the inserts because they were trying to locate a source to grind the inserts down to the print requirements.
Leemar defended on the basis that the inserts were not defective and were made in accordance with Logan’s directions to Martin, and that, in the alternative, CMI accepted the goods and failed to make a timely and effective rejection or revocation of the goods. Martin testified that Logan stated that a tolerance of lk“ was acceptable during their February 20, 1981, telephone conversation, and that lk" was the standard tolerance which Leemar was using/introducing for eighteen other manufacturers in the counterweight business.
In entering judgment in favor of CMI the district court found: although the evidence was in conflict, the parties agreed to dimensions on the steel consistent with the specifications (blueprints) sent by CMI to Lee-mar; the inserts were unusable by CMI; CMI notified Malik of “the problem” with the inserts on April 13, 1981; Leemar was not prejudiced by CMI’s delay in notifying it (Leemar) of the nonconformity of the inserts and CMI’s rejection; Leemar was given adequate time to cure the defect and failed to do so; CMI’s delay in notifying Leemar did not affect the value of the inserts; the fact that CMI paid for the goods is not conclusive proof of acceptance and, when considered with the other evidence, it is clear that CMI did not accept the inserts. The court entered judgment in favor of CMI in the amount of $15,627.40, the purchase price of the inserts, interest of $2,875.44, along with costs and fees.
On appeal, Leemar contends that (1) CMI failed to give an effective notice of rejection to Leemar, (2) the court failed to give it the evidential presumption it was entitled to receive due to CMI’s failure to produce the best evidence and witness, and (3) the district court’s finding that CMI gave sufficient notice of rejection to Leemar is not supported by substantial evidence.
I.
Leemar contends that CMI failed to give it sufficient notice of rejection. Leemar argues that a valid rejection must be clear and unequivocal and that the April 13, 1981, telephone conversation between Malik and Logan, found by the court to constitute a rejection, was in the nature of a complaint about a “problem,” and did not give rise to a rejection. Leemar further argues that CMI committed acts which established that it had accepted the inserts, i.e., CMI paid for the inserts and tried to find a company to grind the inserts. Lastly, Leemar argues that CMI failed to give a timely notification of rejection.
Acceptance of goods occurs in Oklahoma when a buyer, after an opportunity to inspect them, relates to the seller that the goods are conforming or that he will take them despite their non-conformity, or where the buyer fails to make an effective rejection, or does any act inconsistent with the seller’s ownership. Atlan Industries, Inc. v. O.E.M., Inc., 555 F.Supp. 184, 187 (W.D.Okl.1983); Okla.Stat.Ann. tit. 12A § 2-606(1). A buyer is deemed to have accepted goods when, without making any effort to reject them, he receives the goods, processes them, and sells the finished product. Atlan Industries, Inc., supra at 187-88.
If the goods or tender of delivery fail in any respect to conform to the contract, the buyer may reject the whole, accept the whole, or accept any commercial unit or units and reject the rest. Okla.Stat. Ann. tit. 12A, § 2-601. Rejection of goods occurs when a buyer, within a reasonable time after the delivery or tender, seasonably notifies the seller of his rejection. Okla.Stat.Ann. tit. 12A, § 2-602. An action is taken “seasonably” when it is taken at or within the time agreed or within a reasonable time where no time is agreed upon. Okla.Stat.Ann. tit. 12A, § 1-204. What constitutes a reasonable time for taking any action depends on the nature, purpose, and circumstances of such action. Id. A person receives a notice or notification when “it comes to his attention” or “it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.” Okla.Stat. 12A, § 1-201(26). The issue of whether a rejection of non-conforming goods comes within a reasonable time is generally a question of fact. Sherkate Sahami Khass Rapol v. Henry P. John & Son, 701 F.2d 1049 (2d Cir.1983).
Applying these principles to the facts herein, we hold that CMI failed to give Leemar sufficient notice of rejection within a reasonable period of time. Our review of the record establishes several pertinent facts: CMI received the goods on March 23, 1981, and inspected the goods on March 28, 1981, at which time a material rejection report was written up indicating the goods were too thick; CMI did not mail Leemar its material rejection report; CMI related during an April 13, 1981, telephone call to Leemar that it had a “problem” with the goods; CMI paid for the goods on April 24, 1981; between April and July, 1981, both CMI and Leemar made repeated attempts to find someone who could grind the goods down to size; after CMI and Leemar were apparently unable to find someone to grind down the goods, CMI requested that Leemar pick up the goods and return the purchase price; when Lee-mar refused to pick up the goods or return the purchase price, CMI initiated this action.
The record does not establish that CMI, at any time, seasonably notified Lee-mar that it was rejecting the goods. Under these circumstances, we hold that the district court erred in finding that the telephone conversation of April 13, 1981, during the course of which CMI related that it had a “problem” with the goods, gave rise to a rejection of the goods. Although this conversation, made approximately three weeks after CMI had inspected the goods, was “seasonably” taken, nothing in the record indicates that Leemar received notice that the goods were rejected. Seasonable notice of rejection requires that a buyer give the seller clear and unambiguous notice of his rejection within a reasonable time. Explorers Motor Home Corporation v. Alridge, 541 S.W.2d 851 (Tex.Civ.App.1976). Under Oklahoma law, a failure to reject goods results in their acceptance. Okla.Stat.Ann. tit. 12A, § 2-607.
Our holding that the district court erred in finding that CMI had rejected the goods does not necessitate a reversal. An appellate court will affirm the rulings of a lower court on any ground that finds support in the record, even where the lower court reached its conclusions from a different or erroneous course of reasoning. Wiggins v. New Mexico Supreme Court Clerk, 664 F.2d 812 (10th Cir.1981), cert. denied 459 U.S. 840, 103 S.Ct. 90, 74 L.Ed.2d 83; Cayce v. Carter Oil Company, 618 F.2d 669 (10th Cir.1980). Based thereon, we hold that although CMI’s actions did not give rise to a rejection of the goods, its actions did constitute a seasonable revocation of its acceptance of the goods. Okla. StatAnn. tit. 12A, §§ 2-607, 2-711.
In Oklahoma, a buyer may revoke his acceptance of goods of a nonconforming nature by notifying the seller within a reasonable time. Darrow v. Spencer, 581 P.2d 1309, 1313 (Okl.1978). See Okla. Stat.Ann. tit. 12A, §§ 2-607 and 2-608. The question of whether a buyer’s revocation of an acceptance is timely is, as with rejections, a question of fact. Rowe International, Inc. v. J-B Enterprises, Inc., 647 F.2d 830 (8th Cir.1981). A buyer who properly revokes has the same rights with regard to the goods involved as if he had rejected them. Plastic Moldings Corporation v. Park Sherman Co., 606 F.2d 117 (6th Cir.1979); Okla.Stat.Ann. tit. 12A, § 2-608(3).
With either a proper rejection or revocation, title to the goods revests with the seller, Joseph T. Ryerson & Sons v. Commodity Engineering Company, 689 F.2d 478 (4th Cir.1982), and the buyer is freed from his obligation to pay the purchase price. Johnson v. General Motors Corporation, Chevrolet Division, 233 Kan. 1044, 668 P.2d 139, 142 (1983); Franklin v. Mercantile Trust Co., 650 S.W.2d 644 (Mo.App.1983). A buyer may also recover that portion of the purchase price already paid when a rejection or revocation of purchase is proper, Franklin v. Mercantile Trust Co., supra.
We hold that CMI seasonably revoked its acceptance of the nonconforming goods when, as here, it obviously accepted the goods on the reasonable assumption that Leemar would cure the nonconformity, i.e., have the inserts ground down to specifications. Okla.Stat.Ann. tit. 12A, § 2-608(l)(a). Leemar, however, did not seasonably cure the nonconformity. (See R., Malik deposition at p. 39; Vol. IX at pp. 48-52.) It is uncontested that: (1) the inserts were not manufactured in accordance with the blueprint tolerances, (2) the nonconformity of the inserts as manufactured substantially impaired their value, (3) Lee-mar was aware that the inserts were not within the blueprint tolerances and was notified that CMI could not use the inserts as manufactured, (4) from and after April 13, 1981, into August, 1981, both parties communicated regularly in an attempt to find someone who could “cure” the nonconforming goods, i.e., grind them down to the blueprint tolerances, (5) after the parties were unable to have the inserts ground down, CMI requested that Leemar pick up the goods and return the purchase price, (6) and when Leemar refused to pick up the inserts and return the purchase price, CMI initiated this action.
Under such circumstances, CMI seasonably revoked its acceptance. Accordingly, title to the goods revested in Leemar and CMI was freed from its obligation to pay the purchase price and entitled to recover the purchase price they have already paid.
II.
We have carefully considered Leemar’s remaining allegations of them to be individually without merit. error and hold and collectively
WE AFFIRM.
Question: Did the court conclude that an issue was moot?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_state
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26
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellee, v. UNDETERMINED QUANTITIES OF VARIOUS ARTICLES OF DRUG ... EQUIDANTIN NITROFURANTOIN SUSPENSION .... Appeal of PERFORMANCE PRODUCTS, INC.
No. 81-1793.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 9, 1982.
Decided April 15, 1982.
John F. Lemker, Jr., Burditt & Calkins, Chicago, 111., Joseph F. Devereux, Jr., Gunn, Lane & Devereux, P.C., St. Louis, Mo., for Performance Products, Inc., claimant-appellant.
William F. Baxter, Asst. Atty. Gen., John J. Powers, III, Frederic Freilicher, Attys., Dept, of Justice, Washington, D.C., for appellee.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and OVERTON, District Judge.
The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas, sitting by designation.
McMILLIAN, Circuit Judge.
Performance Products, Inc. (Performance) appeals from a final judgment entered in the District Court for the Eastern District of Missouri condemning as adulterated and seizing certain quantities of an animal drug called Equidantin and other materials used in its manufacture. For reversal Performance argues that Equidantin is not a “new animal drug” within the meaning of 21 U.S.C.’ § 321(w), and thus not subject to premarketing clearance by the Food and Drug Administration (FDA) under 21 U.S.C. § 360b(b), because (1) Equidantin is generally recognized as safe and effective and (2) Equidantin is a generic drug or copy of Dantafur, a drug that has been approved by the FDA. For the reasons discussed below, we affirm the judgment of the district court.
Performance is the manufacturer of Equidantin. Equidantin has been on the market since 1970 and is intended for use in the treatment of equine tracheopharyngitis (“race track cough”) and equine urinary tract bacterial infections. The active ingredient in Equidantin is nitrofurantoin, which is also the active ingredient in Dantafur, an FDA-approved drug manufactured and marketed by Norwich-Eaton Pharmaceuticals. Equidantin and Dantafur contain the same amount of nitrofurantoin per dosage unit. However, the inactive ingredients in the two drugs are different. Dantafur contains alcohol among other inactive ingredients. According to the government’s evidence, Equidantin contains the following inactive ingredients: xantham gum (a suspending agent), magnesium aluminum silicate (a suspending agent), potassium sórbate (a preservative), propylene glycol, citric acid (a buffer), anethole (a flavoring agent), sodium saccharin (a flavoring agent), vanillin, and deionized water.
Equidantin is a generic drug or copy (a “me-too” version) of Dantafur, the FDA-approved “brand name” or pioneer drug. A generic drug contains the same active ingredient or “incipient” as an FDA-approved pioneer drug but may contain different inactive ingredients or “excipients.” The manufacturing techniques used by each manufacturer may also differ. It is not disputed that differences in the manufacturing process and variations in the inactive ingredients may affect a drug’s “bioavailability.” Bioavailability is “the rate and extent to which the active drug ingredient or therapeutic moiety is absorbed from a drug product and becomes available at the site of drug action.” 21 C.F.R. § 320.1(a) (1981).
If there is no significant difference between the rate and extent of absorption of two drugs administered at the same molar dose of therapeutic moiety under similar experimental conditions, the drugs are said to be bioequivalent. See 21 C.F.R. § 320.1(e) (1980). When two different drug products are to be used interchangeably in the treatment of illness, it can be critical that the drug products are bioequivalent — that is, that there be no significant difference in the products’ bioavailability. A drug that is less bioavailable than that for which it is substituted will deliver less of its active ingredient than expected; a drug that is more bioavailable than that which it replaces presents the danger of overdosage.
United States v. Premo Pharmaceutical Laboratories, Inc., 511 F.Supp. 958, 962-63 (D.N.J.1981) (Premo II) (footnote omitted) (excellent discussion of factors which may affect bioavailability); see United States v. Generix Drug Corp., 654 F.2d 1114 (5th Cir. 1981) (Generix), cert. granted, - U.S. -, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982); Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795 (2d Cir. 1980) (Premo I); United States v. Articles of Drug (Lannett Co.), 585 F.2d 575 (3d Cir. 1978) (Lannett); see also Pharmadyne Laboratories, Inc. v. Kennedy, 466 F.Supp. 100, 103 (D.N.J.) (Pharmadyne), aff’d on other grounds, 596 F.2d 568 (3d Cir. 1979).
The government’s basic position in the present case, and in the above cited cases, all of which involve generic drugs, is that because many factors, particularly the manufacturing process and choice of inactive ingredients, may affect a generic drug’s bioavailability and thus its bioequivalence to its pioneer drug, the generic drug is a “new drug” (or “new animal drug”) and thus subject to premarketing clearance by the FDA, even though the pioneer drug has already been approved by the FDA. Not surprisingly, the manufacturers of generic drugs oppose the FDA’s position. Basically the position of the manufacturers is that because the generic drug contains the same active ingredient as the FDA-approved pioneer drug, the generic drug is not a “new drug” (or “new animal drug”) and thus not subject to' FDA premarketing clearance. The manufacturers argue that bioavailability and bioequivalence are not relevant to the question of “new drug” (or “new animal drug”) status. Two circuit courts have addressed this issue; the Second Circuit has essentially agreed with the government’s position, see Premo I, 629 F.2d 795; the Fifth Circuit has essentially agreed with the manufacturers’ position, see Generix, 654 F.2d 1114.
The present action began in July 1979 when the government filed a complaint in district court seeking condemnation and seizure of undetermined quantities of Equidantin and materials used in its manufacture. The government argued that Equidantin was an adulterated drug within the meaning of 21 U.S.C. § 351(a)(5) and as such subject to seizure under 21 U.S.C. § 334(a)(1). The government’s characterization of Equidantin as an adulterated drug depended upon Equidantin’s status as a “new animal drug” within the meaning of 21 U.S.C. § 321(w). Because a new animal drug cannot be marketed without an FDA-approved “new animal drug application” or an abbreviated new animal drug application, 21 U.S.C. § 360b(b), and it was not disputed that there was no FDA-approved new animal drug application on file for Equidantin, the government argued that Equidantin was “unsafe” under 21 U.S.C. § 360b(a)(A) and therefore “adulterated” under 21 U.S.C. § 351(a)(5). The district court issued the warrant and the United States Marshal seized approximately 86 quarts of Equidantin, approximately 410 gallons of in-process drug product, 3.4 kilograms of bulk nitrofurantoin powder, and labels and accompanying materials.
Performance intervened in the condemnation action and filed a claim to the seized items. Performance did not dispute that FDA approval is the prerequisite to marketing a new animal drug, but argued that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because it is generally recognized as safe and effective and because it is a generic or copy of Dantafur, the FDA-approved pioneer drug.
Following a bench trial in which both sides presented expert testimony, the district court found that Equidantin was a new animal drug within the meaning of 21 U.S.C. § 321(w) because it was not generally recognized among qualified experts as safe and effective. United States v. Undetermmed Quantities of Various Articles of Drug (Equidantin Nitrofurantoin Suspension), No. 79-0913-C(C) (E.D.Mo. May 29, 1981) (slip op. at 5-6). The district court also found that FDA approval of Dantafur did not constitute general recognition among qualified experts that either Dantafur or Equidantin was safe and effective within the meaning of 21 U.S.C. § 321(w) and, further, that even if Dantafur was generally recognized among qualified experts as safe and effective, Equidantin would not be exempt from FDA premarketing clearance as a new animal drug because the two drugs’ inactive ingredients and manufacturing processes differed. Id. at 5. The district court then ordered the seized items destroyed, but later stayed that order pending appeal.
The issue in this case is thus whether Equidantin is a “new animal drug” within the meaning of 21 U.S.C. § 321(w). The scope of FDA regulation depends upon the statutory definitions. A brief outline of the history of FDA regulation will provide a background and perspective to our discussion. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973); see generally Note, Drug Efficacy and the 1962 Drug Amendments, 60 Geo.L.J. 185 (1971). It should also be noted that the analysis followed in the cases is the same for human and animal drugs. United States v. Naremco, Inc., 553 F.2d 1138, 1142 n.5 (8th Cir. 1977), citing United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. 915, 921 (N.D.Ga.1974), aff’d, 518 F.2d 743 (5th Cir. 1975).
The Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, was the first legislation of national scope directed at the regulation of drug products. The Act set standards of purity for drugs sold in the United States and required accurate labeling of the drugs’ contents. Id. §§ 1, 2, 7. The Act also made unlawful the marketing of adulterated or misbranded drugs and provided for removal of such drugs from the market through libel actions. Id. § 2. There were, however, no provisions regulating false claims of efficacy until the Food and Drug Act of 1906 was amended in 1912 to declare misbranded drugs that were not effective for use under the conditions for which they were recommended.
The greatest defect in the Act, however, was its failure to provide any mechanism for premarketing agency clearance. It was impossible to prevent an unsafe or ineffective drug from reaching the market. In 1938 the “wonder drug” “Elixir of Sulfanilamide,” a solution based on diethylene gylcol and ... a presumed harmless, inert solvent ingredient, went on the market. Apparently, no tests for toxicity were performed prior to marketing; and almost one hundred people died before the drug could be withdrawn.
This Sulfanilamide tragedy led to the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301-392 (1976 & Supp. I 1977) (amended 1962), with provisions for premarketing review of new drugs. This review, however, was directed solely to assuring drug-product safety. It was not until the Act was amended in 1962 that the definition of “new drug” was enlarged to include drugs not generally recognized as safe and effective.
The 1962 amendments changed the data-reporting requirements of the “new drug” procedure to require submission of data showing efficacy and, in place of automatic approval of [new drug applications] not disapproved, the procedure under the 1938 Act, the 1962 amendments required positive agency approval to make [a new drug application] effective.
Premo II, 511 F.Supp. at 962 (footnote omitted).
The new effectiveness requirement of the 1962 legislation was made retroactive to all drugs which had been the subject of new drug applications under the 1938 statute. Thus, it applied to all drugs which previously had secured FDA premarketing approvals . . .
The FDA, recognizing that a transitional period would be necessary to review all drug products affected by the 1962 amendments, granted a two-year grace period before revoking any [new drug applications] given under the 1938 Act. This period of time was to be used to assess the evidence of “effectiveness” of approved drug products. Two years proved to be insufficient time to permit the FDA to evaluate the status of all drugs potentially made “new drugs” by the 1962 amendments. Therefore, in order to expedite the task of evaluation, the FDA arranged with the National Academy of Sciences — National Research Council (“NAS-NRC”) to have them review all qualities of the potential “new drugs.”
NAS-NRC undertook a study of some 4,000 drug formulations for the express purpose of assessing the efficiency of the product. This study, known as the Drug Efficacy Study, was submitted to the FDA for evaluation; the FDA retained authority to accept or reject the findings of NAS-NRC. As a result of the NAS-NRC findings, the FDA set forth in the Federal Register its conclusions and assessment (“Drug Efficacy Study Implementation” or “DESI” Notices) of whether a drug could be considered “effective” for use as required by the 1962 amendments to the [1938] Drug Act.
Lannett, 585 F.2d at 577-78; see also Note, 60 Geo.L.J. at 207-14.
As noted earlier, the regulatory scheme for human and animal drugs is basically the same. In 1968 the animal drug provisions were placed in a separate section of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360b. Animal Drug Amendments of 1968, Pub.L. No. 90-399, 82 Stat. 343 (1968). The definition of “new animal drug” in 21 U.S.C. § 321(w) and the requirement of premarketing clearance by the FDA of new animal drugs under 21 U.S.C. § 360b(b) are essentially the same as the “new drug” definition in 21 U.S.C. § 321(p) and the premarketing clearance provision in 21 U.S.C. § 355(b), (d).
Under § 505 of the Act, 21 U.S.C. § 355, no person may market a new drug unless he files with the FDA a new drug application (NDA) demonstrating that the drug is both safe and effective for which it is intended and obtains FDA approval. Normally the applicant furnishes controlled chemical tests and investigations showing that the product is safe and effective, 21 U.S.C. § 355(d). But where the drug product is claimed to be a copy [or generic version] of one already approved by the FDA on the basis of such submissions — sometimes called a “me-too” drug — the applicant may file with the FDA an “abbreviated new drug application” (ANDA), which relies upon the safety and effectiveness tests conducted with respect to the FDA-approved drug (sometimes called the “pioneer drug”). The FDA will only approve an ANDA, however, where the “me-too” drug product is shown to be the therapeutic equivalent of the pioneer and safe and effective in accordance with 21 U.S.C. § 355(d).
Premo I, 629 F.2d at 798-99; see also Hoffmann-LaRoche, Inc. v. Weinberger, 425 F.Supp. 890 (D.D.C.1975). But cf. Generis, 654 F.2d at 1117 n.4 (criticizing Hoffmann-LaRoche). As with human drugs, manufacturers of generic animal drugs may rely upon the safety and effectiveness data developed for the pioneer drug and file abbreviated new animal drug applications supported by bioavailability studies.
For reversal Performance argues that the government failed to establish that Equidantin is a new animal drug within the meaning of 21 U.S.C. § 321(w). Performance attacks the credibility of the government expert witnesses on the grounds that they lacked qualifications, had no personal clinical experience with nitrofurantoin suspensions, and did not know that Dantafur had been found “effective” by the NAS-NRC in the Drug Efficacy Study. Dantafur was reviewed by NAS-NRC in the Drug Efficacy Study and was found “probably effective” for the treatment of race track cough and equine urinary infections. 35 Fed.Reg. 12792 (1970). In 1977 a supplemental new animal drug application was approved by the FDA finding Dantafur “effective” for the treatment of race track cough and equine urinary infections. See 42 Fed.Reg. 19143 (1977), codified in 21 C.F.R. § 520.1560a (1981). There is no approved new animal drug application, abbreviated new animal drug application or exemption for investigational use on file for Equidantin.
Title 21 U.S.C. § 321(w) defines “new animal drug” as any drug intended for use for animals other than man .. .—
(1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or
(2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions. . . .
Unless an animal drug is generally recognized among qualified experts as safe and effective for its intended uses and has been used to a material extent or for a material time, the drug is a new animal drug and subject to FDA premarketing clearance. See Premo I, 629 F.2d at 801-02.
Congress’ exclusion of “generally recognized” drug products from the definition of a “new drug” is a very narrow one, which is not intended to permit a pharmaceutical manufacturer to substitute its opinion regarding the safety or effectiveness of a drug for that of the FDA, the publicly recognized repository of expertise in such matters, or to require the court to develop its own body of scientific knowledge in substitution for that of the FDA.
Id. at 802.
Thus, while a district court certainly is empowered to adjudicate the “new drug” status of a given drug product, inquiry is limited to the question of “general recognition.” A district court is not empowered to evaluate the actual safety and effectiveness of a drug product. That determination is committed to the FDA due to its superior access to technical expertise.
United States v. Articles of Drug (Hormonin), 498 F.Supp. 424, 431 (D.N.J.1980) (citations omitted); see also Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653-54, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973); AMP, Inc. v. Gardner, 389 F.2d 825, 831 (2d Cir.), cert. denied, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968). Cf. United States v. Alcon Laboratories, 636 F.2d 876, 888 (1st Cir. 1980) (“Jurisdiction over the new drug issue is shared by the FDA . . . and the federal district courts. ... [Deference to an agency’s primary jurisdiction makes little sense in the context of an enforcement proceeding initiated by the agency.”), cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981); accord, Premo I, 629 F.2d at 801.
. Thus, “the purpose of the normal inquiry [into whether a drug is generally recognized among qualified experts as safe and effective for its intended uses] is not to determine safety and effectiveness at all, but to ascertain the drug’s general reputation in the scientific community for such characteristics.” United States v. Articles of Food and Drug (Coli-Trol 80 Medicated), 372 F.Supp. at 920; see Premo I, 629 F.2d at 803-04 (cases cited therein).
Either, a genuine dispute concerning the safety and effectiveness of a drug product or unawareness of the drug product among qualified experts precludes a finding of “general recognition” for purposes of 21 U.S.C. § 321(p) [for human drugs or § 321(w) for animal drugs]. Such an expert consensus as to “general recognition” must be founded upon “substantial evidence” as that term is defined in 21 U.S.C. § 355(d) [for human drugs and § 360b(d)(3) for animal drugs]. Thus, “general recognition” among experts must be based u]>on “ ‘adequate and well-controlled investigations,’ ” as well as publication in scientific literature. “Anecdotal evidence,” i.e., testimony of physicians unsupported by controlled investigation or scientific publication, does not constitute “substantial evidence.” The mere fact that a drug product has been marketed for an extended period does not preclude a finding of “new drug” status.
United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32 (footnote and citations omitted); see Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. at 629, 630, 632, 93 S.Ct. at 2483, 2484; Premo I, 629 F.2d at 803-04; United States v. Article of Drug (Furestrol), 294 F.Supp. 1307, 1311 (N.D.Ga.1968), aff’d, 415 F.2d 390 (5th Cir. 1969).
The government’s expert witnesses, Dr. Gary Koritz and Dr. Nicholas Booth, were extremely well qualified; both are veterinarians and university professors, specialists in veterinary pharmacology, experienced in research and widely published. Both testified that nitrofurantoin in general and Equidantin in particular are not generally recognized among qualified experts as safe and effective to treat race track cough or equine urinary tract infections. Both were aware of the publication of the DESI Notice for Dantafur, but expressed reservations about the validity of the supporting scientific data, and disagreed with the evaluation of effectiveness in the DESI Notice on the merits. Both further testified that, as was admitted by Performance, no completed clinical studies on the safety- or efficacy of Equidantin have been published (apparently a bioavailability study is now in progress); that the limited published data available on the use of nitrofurantoin in horses did not involve Equidantin (the experts also questioned the scientific design of these studies); and that neither had any knowledge of Equidantin before preparing for the present case.
Another government expert witness, Dr. Marvin Meyer, a professor of pharmacy and specialist in biopharmaceutics (the study of factors that affect the absorption, metabolism, distribution, and excretion of drugs), testified at some length about bioavailability. Dr. Meyers testified that bioavailability was important in evaluating the efficacy of nearly all drug products, including suspensions; that differences or changes in bioavailability may affect a drug’s therapeutic value; and that many factors can affect bioavailability, including variations in product formulation, particularly the suspension medium and the crystal size of the active ingredient. See Premo II, 511 F.Supp. at 962-65.
Performance presented the testimony of two professors of pharmacy who testified that the inactive ingredients used in the manufacture of Equidantin are generally recognized as safe for use in pharmaceutical preparations. Another witness, a practicing veterinarian, testified that he prescribed Equidantin and had found it safe and effective. None of Performance’s witnesses, however, testified that either nitrofurantoin or Equidantin was generally recognized among qualified experts as safe and effective for its intended uses. The practicing veterinarian’s testimony was not supported by clinical studies or published data and was clearly anecdotal in character.
After reviewing the testimony under the standards set forth above, we can find no error in the district court’s finding that Equidantin is not generally recognized among qualified experts as safe and effective for its intended uses and therefore, in the absence of general recognition, a new animal drug within the meaning of 21 U.S.C. § 321(w). Not only were the government expert witnesses unaware of Equidantin before preparing to testify in the present case, there was at best a sharp difference of opinion among the experts; there was certainly no general consensus of expert opinion in favor of Equidantin. Nor was there any published scientific literature or well-controlled clinical investigations of Equidantin. See United States v. Articles of Drug (Hormonin), 498 F.Supp. at 431-32.
Performance next argues that Equidantin is not a new animal drug within the meaning of 21 U.S.C. § 321(w) because Equidantin is a generic version or copy of an FDA approved drug. Performance argues that because Dantafur has been approved by the FDA (in the DESI Notice) and because Dantafur and Equidantin contain the same active ingredient (nitrofurantoin) in the same concentration per dosage unit, Equidantin is not a new animal drug within the meaning of the statute. This argument is incorrect; FDA approval, that is, agency recognition of actual safety and effectiveness, must not be confused with general recognition in the scientific community of safety and effectiveness. As discussed earlier, only general recognition plus material use can exempt a drug from new drug status and FDA premarketing clearance. As noted by the Supreme Court in Weinberger v. Hynson, Westcott & Dunning, Inc., “the Act is designed so that drugs on the market ... will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug.’ ” 412 U.S. at 631, 93 S.Ct. at 2484; see also Premo I, 629 F.2d at 803-04. FDA approval is the threshold determination required before the manufacturer can market the drug; it does not exempt the drug from new drug status. Prior FDA approval of Dantafur means only that, if Performance should apply for FDA approval of Equidantin, Performance can rely on the safety and effectiveness data submitted for Dantafur because Dantafur and Equidantin contain the same active ingredient and need only add bioavailability studies to complete its application.
Moreover, the government in the present case showed that nitrofurantoin was not generally recognized among qualified experts as safe and effective. Therefore, even assuming for purposes of argument that the statutory definition of new drug refers only to the active ingredient, Equidantin would not be exempt from new drug status because its active ingredient, nitrofurantoin, is not generally recognized among qualified experts as safe and effective and is therefore a “new drug.” Compare Generix, 654 F.2d at 1115-20 (the term “new drug” as used in 21 U.S.C. § 321(p) applies only to the active ingredients of a drug product), with Premo I, 629 F.2d at 801 (a drug product is a “new drug” unless generally recognized among qualified experts as safe and effective); Premo II, 511 F.Supp. at 968-73; and Pharmadyne, 466 F.Supp. at 103-04. Because the government in the present case showed that neither the pioneer drug (Dantafur) nor the active ingredient (nitrofurantoin) was generally recognized among qualified experts as safe and effective, we need not address whether the term “drug” as used in 21 U.S.C. § 321(p), (w) refers only to the active ingredient in a drug product; if it does, whether general recognition of the pioneer drug will remove any generic copy from new drug status; or if it does not, whether general recognition of the pioneer drug will remove an exact generic copy (identical active and inactive ingredients and manufacturing processes) from new drug status.
Accordingly, the judgment of the district •éóurt is affirmed.
. The Honorable James H. Meredith, United States Senior District Judge for the Eastern District of Missouri.
. 21 U.S.C. § 351(a)(5) provides: “A drug . . . shall be deemed to be adulterated — . . . (5) if it is a new animal drug which is unsafe within the meaning of section 360b of this title .. . . ”
. 21 U.S.C. § 334(a)(1) provides in part:
Any article of ... drug ... that is adulterated ... when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce ... shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States . .. within the jurisdiction of which the article is found....
. 21 U.S.C. § 321(w) provides in part:
The term “new animal drug” means any drug intended for use for animals other than man,
(1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof; ... or
(2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions....
. 21 U.S.C. § 360b(b) provides in part: “Any person may file with the Secretary an applies-. tion with respect to any intended use or uses of a new animal drug.” The section further describes the contents of a new animal drug application (reports of investigations, listing of components, statement of composition, description of methods and facilities and controls used in manufacture, processing and packing, samples of the new animal drug, samples of labeling, etc.).
. 21 U.S.C. § 360b(a)(l)(A) provides: “A new animal drug shall, with respect to any particular use or intended use of such drug, be deemed unsafe for the purposes of section 351(a)(5) ... of this title unless — (A) there is in effect an approval of an application filed pursuant to subsection (b) of this section with respect to such use or intended use of such drug. ... ”
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_initiate
|
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.
Mike THOMAS, Plaintiff-Appellant, v. FARMVILLE MANUFACTURING COMPANY, INC., Defendant-Appellee.
No. 82-8688
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
May 23, 1983.
Thomas H. Hyman, Cordele, Ga., for plaintiff-appellant.
Ronald C. Henson, Paula A. Hilburn, Atlanta, Ga., for defendant-appellee.
Before TJOFLAT, JOHNSON and HATCHETT, Circuit Judges.
PER CURIAM:
Mike Thomas, appellant, filed this action against Farmville Manufacturing Company, Inc., alleging violations of the Fair Labor Standards Act, in the Superior Court, Crisp County, State of Georgia, on July 12, 1982. The case was removed by Farmville on August 11, 1982, pursuant to 28 U.S.C.A. § 1441. A motion to dismiss was filed at the same time as the removal petition. On August 27, 1982, the district court determined and held “that the Defendant’s motion to dismiss the Plaintiff’s complaint .should be sustained in that it appears that the Plaintiff’s complaint does not adequately set forth a cause of action to enable the Plaintiff to recover under the provisions of the Fair Labor Standards Act.”
On September 10, 1982, the plaintiff moved to vacate the order of dismissal and also requested leave to amend the complaint; to this motion plaintiff attached a proposed amendment. On October 1, 1982,’ the district court denied the motions to vacate the order of dismissal and to grant leave to amend the complaint.
The standard of review for a denial. of leave to amend, and for denial of a Rule 59(e) motion, is abuse of discretion. Stutts v. Freeman, 694 F.2d 666, 669 (11th Cir.1983); Paschal v. Florida Public Employees Relations Commission, 666 F.2d 1381, 1384 (11th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982). A grant of leave to amend is particularly appropriate following dismissal of a complaint for failure to state a claim, Griggs v. Hinds Junior College, 563 F.2d 179, 180 (5th Cir.1977), and, in the absence. of a declared or apparent reason, an outright refusal to grant leave to amend is an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The application of these principles to this case leads to the conclusion that the denial of leave to amend by the district court was an abuse of discretion.
The order dismissing the complaint is VACATED and the case is REMANDED to the district court with directions to allow the filing of an amended complaint.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Plaintiff, Appellee, v. Danny BACA, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Mary MARQUEZ, Defendant, Appellant.
Nos. 112-69, 113-69.
United States Court of Appeals Tenth Circuit.
Sept. 30, 1969.
Rehearings En Banc Denied Dec. 4, 1969.
Clyde E. Sullivan, Jr., Albuquerque, N. M., for appellant Baca.
James I. Bartholomew, Albuquerque, N. M., for appellant Marquez.
Victor R. Ortega, U. S. Atty., Ruth C. Streeter and John A. Babington, Asst. U. S. Attys., for appellee.
Before HILL, TUTTLE and HOLLOWAY, Circuit Judges.
Of the Fifth Circuit, sitting by designation.
TUTTLE, Circuit Judge.
The appellants, Baca and Marquez, were indicted and jointly tried before a jury in the United States District Court for the District of New Mexico and convicted of the unlawful possession of heroin in violation of 21 U.S.C.A. § 174. They appeal to this court contending that the heroin should not have been admitted into evidence because it was obtained as a result of an illegal search and seizure.
On July 2, 1968, the United States Parole Office in Albuquerque, New Mexico was informed by teletype that a Parole Violation Warrant had been issued that day for Danny Baca. On July 9, 1969, five officers — one state narcotics officer, one city narcotics officer, two uniformed city policemen and one federal narcotics officer — went to the home of appellants where they were living as man and wife and gained entrance into their home for allegedly the sole purpose of returning appellant Baca to official authority for violation of his parole. Three officers went to the front door and two officers went to the back door. Almost immediately, upon entering the house with the reluctantly given permission and consent of Appellant Marquez, one of the uniformed officers saw Baca and placed him under arrest pursuant to the parole violation warrant by handcuffing him behind his back. While this was going on in the doorway of the bedroom, the two officers who were at the back door were let in and appellant Baca was brought just inside the bedroom. At the same time, one of the uniformed officers noticed two vials which appeared to contain some narcotics and some paraphernalia on a chair next to the bed. He went and picked up the vials, unwrapped the cloth and found a spoon, an eyedropper and a needle, two needles in a plastic container and some brown substance in the vials. At this point, a thorough search of the apartment was ordered by the federal officer in charge. The fruit of this search was approximately 207 grams of heroin. It is the appellants’ contention that the fruit resulted from an illegal search and therefore should have been suppressed under the “exclusionary rule.”
Appellant Baca, was taken from the apartment to the police station during the search and most of the search continued after he was gone, but while appellant Marquez remained. However, Marquez was not placed under arrest until after the entire approximately thirty minute search was completed. Appellant Baca was brought back to the apartment and “officially” placed under arrest for possession of heroin after the completion of the search of the entire apartment.
The appellants raise several issues on this appeal; however, because of the view we take of the case only the issue of whether the contraband was discovered as a result of an unlawful search is necessary for our discussion.
The precise meaning and application of the Fourth Amendment has not been as crystallized as either the Court or law enforcement officers would like for it to be. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, has recently given us the type of crystallization which we have been seeking. However, this is a pre-Chimel case, and the Supreme Court expressly pretermitted a decision whether the Chimel principle is to be applied retroactively. Here it is not necessary for our purposes to decide the retroactivity of Chimel in this case. Under Pre-Chimel standards, we have had some tests for determining when a search is lawful or unlawful, for the language of the Fourth Amendment itself states that the search or seizure must not be unreasonable and that a warrant is to be issued only upon the showing of probable cause.
The Supreme Court has almost consistently held that there may be a search without a warrant which is incidental to a lawful arrest. However, the “reasonableness” restriction on such a search has been carefully preserved by the Court:
“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, or as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.
See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. See also this court’s decision in United States v. Holsey (10 Cir., 1969) 414 F.2d 458, decided August 27, 1969.
We accept the finding of the district court that the two vials and wrapped parphernalia were in plain sight and that a crime other than the one called for by the parole violation warrant was openly being committed. As the Court in Go-Bart Importing Co. v. United States, supra, pointed out, things which are visible and accessible and in the offender’s immediate custody can be seized by the police officers as was done in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. However, this justifies only the seizure of the two vials and the narcotics paraphernalia, it does not necessarily go one step further and support the search which is in question here.
As Preston, supra, clearly explains, the area within the immediate control of the defendant may be searched and evidence or weapons seized without a warrant when made incidental to a lawful arrest. However, it can hardly be said or found that the closet, second bedroom of the downstairs area was under Baca’s immediate control when he was physically confined to a limited area within the 9 X 12 bedroom and when he was, during most of the search, riding in a patrol car to the police station. Moreover, it cannot be said that the inside of his bureau drawers, night stand, under the bed or any similar area was under any type of control by Baca inasmuch as he was handcuffed with his hands behind his back and was unable even to dress himself.
The rule has been long established that whenever it is practicable, an officer must secure a search warrant:
“It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.” Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229.
See McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034.
It is difficult to understand how or why it was not practicable for one of the five officers to obtain a search warrant based on the probable cause resulting from the finding of the two vials and the narcotics paraphernalia. The court in United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, states that the burden is on those seeking an exemption [to the requirement that a search warrant must be obtained] to show the need for the exemption. In Chimel v. California, supra, the court added that the general requirement that a search warrant be obtained is not to be lightly-dispensed with.
Therefore, the evidence seized was in violation of the Fourth Amendment and the appellants’ motion to suppress should have been granted. This judgment and sentence are reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
LEWIS and BREITENSTEIN, JJ., voted to grant petition for rehearing en banc.
. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated and No warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_1-3-1
|
L
|
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, Plaintiff-Appellee, v. Edward J. MESHESKI, Defendant-Appellant.
No. 13087.
United States Court of Appeals Seventh Circuit.
Jan. 30, 1961.
Philip G. Marshall, Milwaukee, Wis., James E. Doyle, Madison, Wis., for appellant.
Edward G. Minor, U. S. Atty., Howard C. Equitz, Asst. U. S. Atty., Milwaukee, Wis., for appellee.
Before KNOCH and CASTLE, Circuit Judges, and PLATT, District Judge.
KNOCH, Circuit Judge.
Defendant was indicted in twenty counts charging him with the offense of knowingly and willfully attempting to evade and defeat the payment of taxes in violation of Section 145(b), Title 26, U.S.C., Internal Revenue Code of 1939, or of the comparable Section 7201, Title 26 U.S.C., Internal Revenue Code of 1954.
The facts are not in dispute. Defendant was in the business of preparing tax returns for others and had been engaged in that business for .some years. Having prepared the returns and having obtained money from the taxpayers for transmittal to the Director of Internal Revenue, he failed to file the returns and diverted the money to his own uses.
The District Court denied defendant’s motion to dismiss the indictment on the ground that no count stated facts sufficient to constitute an offense against the United States.
The defendant waived jury trial. The District Court found him guilty. He was fined $1,000 and placed on probation for five years. Special conditions of probation were imposed. Defendant brought this appeal. He states the sole contested issue to be:
“Is a person who converts money entrusted to him by another for the payment of such other’s income tax by failing to turn it over to the Internal Revenue Service guilty of a felony within the meaning of Section 145(b), Internal Revenue Code of 1939 or the comparable Section 7201, Internal Revenue Code of 1954?”
Defendant argues that the willful failure to file returns, submit information or pay taxes, is, at worst, a misdemeanor under Section 145(a) or the comparable Section 7203, but that defendant here has been improperly charged with a felony for mere passive failure to file returns and pay taxes. Thus, he eon-tends, willful failure by the taxpayer himself would constitute a mere misdemeanor, but defendant’s willful failure to file the same return is alleged to constitute a felony.
It is conceded by defendant that persons other than the taxpayer have been-, successfully prosecuted under the felony section. In these cases, however, the-defendant had engaged ip some such a,ct tivity as preparing and filing fraudulent returns, or conspiring with the taxpayer by keeping fraudulent books or hiding assets. Tinkoff v. United States, 7 Cir., 1936, 86 F.2d 868; Maxfield v. United States, 9 Cir., 1945, 152 F.2d 593; United States v. Borgis, 7 Cir., 1950, 182 F.2d 274.
Neither defendant nor the government has cited any published case directly in point. The parties are agreed that mere failure to file a return and pay a tax does not constitute a willful attempt, to evade or defeat the tax. There must, be something more, some affirmative positive act to attempt to defeat or evade-the tax. Spies v. United States, 1943, 317 U.S. 492, 500, 63 S.Ct. 364, 87 L.Ed. 418; United States v. Bardin, 7 Cir., 1955, 224 F.2d 255, 260 ; Bridgeforth v. United States, 6 Cir., 1956, 233 F.2d 451, 453.
The government argues that defendant did such additional affirmative acts as must render him guilty of a felony. It is asserted that he prepared the returns and received payment from the taxpayers in cash or in checks payable to his order. He then prepared his own checks payable to the District Director of Internal Revenue, and envelopes addressed to that official, which he exhibited to the taxpayers, who were also given receipts and assured that their tax obligations were discharged. Thus defendant forestalled investigation by the taxpayers who would not thereafter be expecting to receive either their cancelled •checks or receipts from the District Director.
After careful and extended consideration, this Court has concluded that the •defendant’s reprehensible actions, designed to hinder detection of the strictly local crime of embezzlement, do not constitute such affirmative conduct as clearly and reasonably infers a motive to evade or defeat tax.
The judgment of the Court below is therefore reversed.
. The pertinent sections read:
Ҥ 145. Penalties
“(a) Failure to file returns, submit information, or pay tax. Any person required under this chapter to pay any estimated tax or tax, or required by law or regulations made under authority thereof to make a return or declaration, keep any records, or supply any information, for the purposes of the computation, assessment, or collection of any estimated tax or tax imposed by this chapter, who willfully fails to pay such estimated tax or tax, make such return or declaration, keep such records, or supply such information at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than one year or both, together with the costs of prosecution.
“(b) Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more that $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.” I.K..O. 1939.
Ҥ 7201. Attempt to evade or defeat tax
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution. * * * ”
Ҥ 7203. Willful failure to file return, supply information or pay tax
Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.” I.R.C.1954.
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:
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songer_jurisdiction
|
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 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".
ESTATE OF Maurice G. TODISCO, Framingham Trust Company, Executor, Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.
No. 84-1494.
United States Court of Appeals, First Circuit.
Argued Nov. 7, 1984.
Decided March 13, 1985.
Chester M. Howe, Boston, Mass., with whom Gaston Snow & Ely Bartlett, Boston, Mass., was on brief for petitioner, appellant.
Bruce R. Ellisen, Washington, D.C., with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Tax Div., Dept, of Justice, Washington, D.C., were on brief for respondent, appellee.
Before CAMPBELL, Chief Judge, McGOWAN, Senior Circuit Judge, and BOWNES, Circuit Judge.
Of the District of Columbia Circuit, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
This is an appeal by the estate of Maurice G. Todisco, through the Framingham Trust Company, its executor, from a decision of the United States Tax Court that there was a deficiency in Todisco’s income tax for the taxable year 1972 of $14,598 plus interest and penalties for negligent underpayment and failure to timely file a return, and that there was no deficiency or overpayment for the taxable year 1973. Estate of Todisco v. Commissioner, 46 T.C.M. (CCH) 35 (1983).
I. FACTS
Maurice G. Todisco was part owner and an employee of a bar. His 1972 and 1973 federal income tax returns reported income earned from the bar but not from a bookmaking business which he also conducted.
Todisco ran the bookmaking operation from April 1, 1972 to April 14,1973. Todisco accepted wagers on sporting events, horseracing and numbers. He employed one Anthony Pellegrino to answer the telephone and record wagers. Pellegrino was the principal witness for the Estate at the trial.
On April 14, 1973, the Massachusetts State Police arrested Todisco for gaming violations. The police seized $5,925.25 in cash at the time of Todisco’s arrest, $26,-000 in cash from Todisco’s safety deposit boxes soon thereafter, and $4,521 from To-disco the following November. Those sums, totalling $36,446.25, were applied in toto to satisfy assessments in like amount against Todisco for state income taxes due on Todisco’s bookmaking income.
At the time of Todisco’s arrest, the Massachusetts police also seized betting slips for the dates April 2-13, 1973. The total gross wagers for those dates were as follows:
Date Gross Wagers
April 2, 1973 $350.84
3 255.75
4 4,509.90
5 11,427.30
6 1.302.00
7 11,647.50
8 10,240.00
9 768.25
10 8,244.25
11 3,067.75
12 5.049.00
13 9,093.50
Copies of the actual betting slips for April 13, 1973 were introduced into evidence before the tax court. Copies of the slips for the dates April 2-12 were in the Commissioner’s possession prior to trial, but were either lost or destroyed and so were unavailable at trial. No other betting slips or other wagering records were found or introduced into evidence, which was to be expected given Todisco’s routine practice of destroying betting slips after two weeks.
On April 13, 1973, the one day for which copies of betting slips are available, Todisco’s book won $4,690.25. and lost $4,140. Todisco’s gross profits were thus $550.25 on gross wagers of $9,093.50, yielding a gross profit percentage of 6.05 percent. The April 13 betting was distributed among basketball, baseball, horseracing, and numbers as follows:
Gross
Gross Bettor Bettor Profit
Bets Lost Won (Loss)
Basketball $7,450.00 $4,065.00 $3,125.00 $940.00
Baseball 330.00 225.00 75.00 150.00
Horses 350.00 857.00 (507.00)
Numbers 50.25 83.00 (32.75)
$9,093.50 $4,690.25 $4,140.00 $550.25
Gross wagers for numbers-and horseracing were not recorded; from the gross wagers on other events, it is possible to determine that the combined gross wagers on numbers and horseracing was $1,313.50. Thus, on that one day, Todisco suffered losses on horses and numbers, and had a gross profit of 12.6 percent on basketball wagers and 45 percent on baseball wagers.
II. TAX COURT DETERMINATION OF TODISCO’S GROSS PROFIT PERCENTAGE
At trial, the Commissioner argued that Todisco’s gross profit percentage to be used in calculating Todisco’s estimated gross income from bookmaking should be ten percent. As Special Agent Avila, the revenue agent assigned to Todisco’s audit, testified, “In reviewing the betting slips, I could see the profit line built right in---It cost you $5.50 to make $5.00.” Avila’s testimony reflected Pellegrino’s earlier testimony that a bettor would have to put up $55 to win an additional $50 on a basketball game.
Todisco’s estate argued that Special Agent Avila’s conclusion that Todisco’s gross profit percentage was ten percent did not follow from the premised odds. It noted that if one posited a basketball game for which the total bets for each side were equal, i.e., a game with a so-called balanced book, with, say, $55 bet on each side, then Todisco would pay out $50 to the winner and collect $55 from the loser, thereby producing a gross profit of $5 on total wagers of $110; assuming a balanced book, then, Todisco’s gross profit percentage would be 4.54 percent. Pellegrino testified that recovering this percentage, known to bookmakers as the “juice,” was Todisco’s intended means of making a profit, and that Todisco, when presented with an especially unbalanced book, would place balancing bets with other bookmakers to reduce his potential exposure should the team more heavily bet on win. The estate also noted that the actual gross profit percentage for April 13, 1973, the one day for which sufficient records were available, was 6.05 percent. The estate argued that the segment of the betting generating the highest gross profits and a higher-than-average gross profit percentage, basketball, was overrepresented in the betting slips for April 13, 1973 because three NBA playoff games, including one involving the Boston Celtics, were played on that date; as Pellegrino testified, bettors would “go wild” during the playoffs. Finally, the estate presented considerable evidence that Todisco’s net worth and lifestyle were inconsistent with the amount of bookmaking income a ten percent gross profit percentage would indicate.
The tax court acknowledged that the Commissioner’s method for calculating To-disco’s gross profit percentage was spurious. It also found from an examination of the betting slips from April 13, 1973 that the factual assumption underlying the estate’s theoretical estimate of Todisco’s gross profit percentage at 4.54 percent, i.e., Todisco’s having kept a balanced book, did not obtain. For example, on the Boston Celtics-Atlanta Hawks game of April 13, 1973, $2,885 was be.t on the Celtics, but only $1,100 was bet on the Hawks. While it is true that Todisco would try to compensate for a particularly unbalanced book by making balancing bets with other bookmakers, the fact that he was willing to accept unbalanced wagers made it impossible in the tax court’s eyes to use 4.54 percent as the best estimate of Todisco’s gross profit percentage. The tax court concluded, “[I]t is impossible, without adequate records, to know what his exact profit percentage was,” but “[a]fter careful consideration of all the facts in the record, with particular emphasis on the spread of profit percentages among the events on April 13, 1973, we find that Todisco’s profit percentage was 8 percent.” 46 T.C.M. at 41.
The estate contends that the evidence does not support a finding that To-disco’s gross profit percentage exceeded 6.05 percent. Since the determination of Todisco’s gross profit percentage is a matter of fact, we examine the finding of the tax court only for the presence of clear error. Taylor v. Commissioner, 445 F.2d 455, 459 (1st Cir.1971). Because we can discover no material support in the record for a gross profit percentage of eight percent (or any other figure in excess of 6.05 percent), we are obliged to conclude that the tax court committed clear error in calculating the 1973 tax deficiency on the basis of a profit percentage of eight percent.
The tax court’s sole stated ground for estimating the 1973 gross profit percentage at eight percent was the spread of profit percentages on April 13, 1973: 45 percent for baseball, 12.6 percent for basketball, and losses on numbers and horseracing. For this spread to be evidence for a higher gross profit percentage than 6.05 percent, the court was required to find either that the profitable bets were systematically underrepresented in the mix of betting for April 13, 1973, or that the various profit percentages were systematically too low, or both. As to the former, the evidence suggests, if anything, that the profitable bets were overrepresented on that date, since April 13 fell both at the beginning of the baseball season, when bets could be expected to be higher, and during the NBA playoffs, in which the Boston Celtics were involved, while numbers and horseracing presumably continued year around or nearly so at constant levels. As to the latter, the only evidence presented was the theoretical estimate based on a balanced book of 4.54 percent for sporting events, and testimony by Pellegrino that Todisco’s profit margins on horseracing and numbers were 5 and 50 percent, respectively, and that baseball wagering generally lost money for bookmakers and was only offered as a service to bettors. Thus, aside from wagering on numbers, which made up only a tiny fraction of the total wagers, the evidence suggests that Todisco’s long-term gross profits were around five percent, as Pellegrino testified; there is, in any event, no evidence that Todisco’s gross profit percentage exceeded 6.05 percent, the amount earned on April 13, 1973.
In support of the reasonableness of the tax court’s eight percent gross profit percentage, the Commissioner makes two arguments. First, he suggests the actual gross profit percentage achieved on April 13, 1973, 6.05 percent, was abnormally low because, as Pellegrino testified, on a typical day, Todisco would not have lost money on horses and numbers. True enough, but Pellegrino’s testimony also suggests that on a typical day Todisco would not have made as much as 45 percent on baseball and 12.6 percent on basketball either. The tax court cannot, at least without some reasonable basis for doing so, select out from Pellegrino’s testimony only those aspects which make for a higher tax.
Second, the Commissioner argues that Todisco’s failure to keep a balanced book on April 13 warrants disregarding the 4.54 percent theoretical estimate and assuming a figure such as eight percent. We disagree. Pellegrino’s testimony was all to the effect that Todisco undertook to keep as balanced a book as possible, and that Todisco’s profit came from the “juice.” Such intentions are admittedly only indirect evidence of their desired result, but they are evidence nonetheless. On the other side of the scale, there is no evidence that Todisco consciously refused wagers because he thought the bettor had picked a winner, that he himself solicited wagers other than balancing wagers with other bookmakers, or that such practices are customary among bookmakers. The mere fact that he did not have a perfectly balanced book with respect to the April 13 basketball games is as easily explained by the difficulty of finding someone in Boston who would cover bets against the Celtics as by some theory that Todisco was skilled at increasing his take by covering only those bets on which he was likely to lose out. For this latter theory to hold water, we think it was necessary for there to be some other supporting evidence. There is none. The only actual evidence is that Todisco’s criterion for refusing or soliciting wagers was their tendency to disturb or create a balanced book.
We recognize that the necessity for estimating Todisco’s income arose from Todisco’s failure to maintain adequate records. This fact inclines us to uphold any reasonably supported estimate made here. Still, there must be some basis for the figure selected. We note, moreover, that records for 11 of the 12 days for which slips were kept were either lost or destroyed while in the custody of the state or the Commissioner. The Commissioner thus bears some responsibility for the lack of evidence upon which to reconstruct taxpayer’s earnings.
Furthermore, this is not a case in which the Commissioner alleges that the few figures available relative to taxpayer’s activities were inaccurate. See, e.g., Truman v. Commissioner, 8 T.C.M. (CCH) 108 (1949). As the tax court stated in Rainwater v. Commissioner, 23 T.C. 450 (1954),
[T]rue, petitioner had destroyed [the original betting slips for all but a two-week period,] and thus has made the Commissioner’s task of auditing the returns immeasurably more difficult than it should be. This is conduct that is not to be condoned. Perhaps the Treasury should seek and the Congress should provide it with appropriate and effective sanctions, civil or criminal or both, against taxpayers who fail to keep or who do away with important records bearing on their liability. But, under the law as it now stands we are not empowered to approve deficiencies merely because records have been destroyed.
Id. at 456. Because the Commissioner has presented no credible arguments or evidence for setting Todisco’s gross profit percentage higher than the 6.05 percent that the extant records indicate, we think the tax court’s finding that Todisco’s gross profit percentage was eight percent was arbitrary and excessive, and so unsustainable. See Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935). On remand, the tax court should recalculate the estate’s tax liability applying the 6.05 percent figure.
III. ERRONEOUS ASSIGNMENT OF BURDEN OF PROOF
The estate suggests that the tax court erroneously placed the burden of disproving the Commissioner's deficiency calculation on the estate; in so arguing, the estate relies on United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), for the proposition that a “naked” assessment of tax is without validity.
Our response is twofold. First, in light of the fact that the tax court accepted neither the Commissioner’s determination of Todisco’s gross profit margin nor of the amount of his gross wagers, but instead made its own findings, the question of the allocation of burdens seems irrelevant. Second, granting for the sake of argument that the Commissioner’s method of arriving at a ten percent gross profit margin was arbitrary and that the Commissioner shares in the fault along with Todisco for the lack of evidence of Todisco’s bookmaking operations, it is clear nonetheless that Todisco earned bookmaking income in 1972 and 1973. The Commissioner’s present action is thus not a naked assessment of tax.
The Commissioner calculated Todisco’s gross income from bookmaking by taking Todisco’s gross wagers from the period April 2-13, 1973 to be his total gross wagers for an even two-week period, dividing it by two to obtain his average weekly wagers, multiplying the average by the ten percent estimated profit margin to obtain average weekly profits, and finally multiplying the average weekly profit by the number of weeks in 1972 and 1973 that Todisco ran his bookmaking operation to obtain gross income from wagering in those years. We agree with the tax court’s approval of both the commissioner’s general method for calculating Todisco’s gross bookmaking income and his method for calculating Todisco’s gross wagers as reasonable. The fact that the Commissioner’s calculation may have been based in part on an erroneous formula for determining gross profit percentage does not disturb the basic rule in all tax cases that the burden of proof rests on the taxpayer. United States v. Rexach, 482 F.2d 10 (1st Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973). As to the only aspect of the Commissioner’s calculations that might be said to be arbitrary, the determination of Todisco’s gross profit margin to be ten percent (reduced by the tax court to eight percent), this court has already accepted the estate’s argument in the previous section.
IV. STATE TAXES
Section 165(d) of the Internal Revenue Code provides as follows:
(d) Wagering losses. — Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions.
In Offutt v. Commissioner, 16 T.C. 1214 (1951), the tax court held that the predecessor of section 165(d) in the Internal Revenue Code of 1939 limited the deductibility of the mailing, printing, and stenographic expenses of a bookmaker to the amount of his wagering income. Under the authority of Offutt, the Commissioner limited the availability as a federal income tax deduction of the $36,446.25 seized by the Massachusetts State Police in 1973 in payment of state income taxes, which would otherwise be deductible under I.R.C. § 164, to the amount of Todisco’s bookmaking income in 1973. The tax court adopted this position below.
The estate argues that the section 164 deduction for state income taxes is generally not considered an expense “attributable to a trade or business carried on by the taxpayer” for the purposes of calculating adjusted gross income under I.R.C. § 62(1). See 26 C.F.R. § 1.62-l(d); Tanner v. Commissioner, 45 T.C. 145, aff'd, 363 F.2d 36 (4th Cir.1966). 26 C.F.R. § 1.62-l(d) explains that state income taxes are generally not “attributable to a trade or business” because they are too “remotely[ ] connected with the conduct of a trade or business.” Therefore, since they are not attributable to Todisco’s bookmaking for purposes of computing his adjusted gross income under section 62(1), so the estate argues, they are not losses from wagering for purposes of section 165(d). This argument also distinguishes the expenses whose deductibility was held in Offutt to be subject to the section 165(d) limitation, since mailing, printing, and stenography would fall within section 62(1).
As a general matter, we agree with the proposition that state taxes levied on an individual’s net income from all sources are too remotely connected to any wagering income that an individual might have to be subject to section 165(d). In this case, however, the taxes assessed represented amounts confiscated from Todisco specifically for state income taxes due on Todisco’s bookmaking income. 46 T.C.M. at 38. This particular assessment is thus directly tied to Todisco’s bookmaking income, and hence is subject to the limitation of section 165(d). In analogous settings, the IRS has ruled that state individual income taxes on net income from business profits are attributable to a taxpayer’s trade or business for the purpose of computing the amount of any net operating loss carryforward or carryback under I.R.C. § 172(d)(4), see Rev. Rui. 70-40, 1970-1 C.B. 50. Moreover, in direct response to the estate’s argument, the IRS has ruled that state taxes on gross income directly attributable to an individual’s trade or business are deductible for the purpose of determining adjusted gross income under section 62(1). Rev.Rul. 58-142, 1958-1 C.B. 147, reaffd, Rev.Rul. 70-40, 1970-1 C.B. 50. Accordingly, on the facts of this case, we see no reason not to extend the reasoning of Offutt to state income taxes paid by an individual on gambling income.
V. FEDERAL WAGERING EXCISE TAXES
Section 446(b) of the Internal Revenue Code provides as follows:
(b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.
The estate argues that the tax court erred in upholding the decision of the Commissioner to compute Todisco’s taxable income from bookmaking on a cash basis. The upshot of that decision is that the ten percent federal excise tax on gross wagers imposed on Todisco in 1973 has never been available as a deduction against Todisco’s income taxes, since it has never been paid. The estate suggests that the taxes accrued in 1972 and 1973, and that the only method of accounting that clearly reflects Todisco’s bookmaking income for those years would be to allow the excise taxes as deductions when accrued.
This argument has one fatal factual flaw: as a comparison of the amount of the excise tax levied ($49,467.04) and the original estimate by the Commissioner of Todisco’s estimated gross wagers for 1973 ($494,670.30) reveals, the excise tax was imposed only on Todisco’s 1973 gross wagers. Since Todisco’s losses and expenses from 1973 bookmaking aside from the excise tax already exceeded his 1973 bookmaking income, and since the estate concedes that federal wagering excise taxes are subject to the section 165(d) limitation, a change of accounting method would have no effect on Todisco’s 1973 taxable income. Furthermore, a change in accounting method could not affect Todisco’s 1972 taxable income, since the taxes accrued in 1973.
The decision of the tax court is affirmed, except for that part pertaining to the deficiency due for the taxable year 1972 and the additional tax due for that year, which are vacated and the cause is remanded to that court for recomputation in accordance with the opinion filed this date.
No costs.
So ordered.
. At another point in his brief, the Commissioner attacks the consistency of Pellegrino’s testimony. The alleged inconsistency arises from his testimony at various points that Todisco’s gross profit percentage was about five percent, but that Todisco's average weekly gross profits were about $500 and his typical weekly gross wagers during non-playoff periods were roughly $2,000. From the latter two figures the Commissioner imputes to Todisco the conclusion that Todisco’s profits were in fact roughly 25 percent, thereby ignoring the fact that the $2,000 figure was stated to be Todisco’s typical weekly gross wagers during non-playoff periods. In light of Pellegrino’s testimony that bettors would be "wild” during the playoffs, thereby greatly increasing the weekly wagers, we find nothing necessarily inconsistent in his testimony.
. As a general matter, expenses that fall within section 62 are taken into account in computing a taxpayer’s adjusted gross income, and hence are available as a deduction to all individuals while most other deductions are used in computing taxable income, and hence are available to an individual only if he or she itemizes, see I.R.C. § 63.
. It should be noted that Massachusetts during 1973 imposed a flat tax on taxable income, using federal definitions of income as its starting point. Mass.Gen.Laws ch. 62, § 4. Because the tax is flat, the amount assessed against To-disco for his bookmaking income is less dependent on the amount of his other income than would be the case under a progressive tax.
. Before the tax court, the estate evidently advanced the argument that the amount of state income and federal excise taxes not available in 1973 because of the section 165(d) limitation could be carried back to 1972 as a net operating loss under I.R.C. § 172(c). The tax court correctly rejected this argument on the grounds that "the section 165(d) limitation means that petitioner has no 'excess of the deductions allowed by this chapter over the gross income’ for 1973, and thus has no net operating loss to be carried back from 1973.” 46 T.C.M. at 45.
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_state
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36
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Monroe VAUGHN, Defendant-Appellant.
No. 73-1722.
United States Court of Appeals, Sixth Circuit.
Argued April 1, 1974.
Decided May 3, 1974.
Donald M. Kresge, Ada, Ohio (Court-appointed), on brief, for defendant-appellant.
Frederick M. Coleman, U. S. Atty., Clarence B. Taylor, Asst. U. S. Atty., Cleveland, Ohio, on brief, for plaintiffappellee.
Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
PER CURIAM.
Appellant was convicted after jury trial in the United States District Court for the Northern District of Ohio on a charge of possession of stolen mail matter, in violation of 18 U.S.C. § 1708 (1970).
The principal issue briefed and argued before us on this appeal concerns appellant’s claim that his refusal to sign a written waiver of his Miranda rights rendered inadmissible the product of any interrogation which had been conducted in relation to this case. It is conceded that the postal inspectors who interrogated appellant read him his full Miranda rights and there is nothing to contradict the District Judge’s ruling that his subsequent identification of himself and his subsequent answers to questions were voluntarily given.
The Fifth Circuit has held: “[Wjhen all the circumstances indicate that the defendant knew of his right to remain silent and intelligently waived that right, the refusal to sign a written waiver does not render a confession inadmissible.” United States v. Johnson, 455 F.2d 311, 314 (5th Cir. 1972). This language was recently quoted in support of this court’s refusal “to adopt . . . a narrow construction of Miranda” in a fact situation somewhat parallel to our instant case. Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974). We now express agreement with the Fifth Circuit’s view that the refusal to sign a written waiver, standing alone, does not render inadmissible statements or evidence voluntarily given after full warnings.
As we read this record, there was ample evidence from which the jury could have concluded (beyond reasonable doubt) that appellant knowingly sought to cash a stolen welfare check made out to another party, and was caught red-handed in the act.
No other appellate issues of substance are presented and the judgment of conviction is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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sc_casesource
|
024
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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.
CALLAWAY, TRUSTEE, et al. v. BENTON et al.
No. 21.
Argued October 19, 1948.
Decided February 7, 1949.
T. M. Cunningham argued the cause for petitioners. With him on the brief were A. R. Lawton, Jr., Walter A. Harris and Wallace Miller.
Charles J. Bloch argued the cause for respondents. With him on the brief was Ellsworth Hall, Jr.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
The Central of Georgia Railway Company, whose Trustee is the petitioner here, and its predecessor have leased and operated the property of the South Western Railroad Company since 1869. The Central went into receivership in 1932, and in 1940 entered reorganization under § 77 of the Bankruptcy Act. 49 Stat. 911, 11 U. S. C. § 205. South Western’s lease was adopted successively by Central’s Receiver and Trustees. It has, in consequence, remained solvent, and no petition for reorganization has ever been filed in its behalf.
Under the plan of reorganization of the Central approved by the Interstate Commerce Commission and by the district court, South Western is given the alternative of selling its property to the reorganized company in return for a fixed amount of bonds of the latter, or of having the lease disaffirmed by the debtor and its property returned. South Western appeared specially in the reorganization proceedings and asked that its lease be adopted by the reorganized company, but on the basis of studies and estimates not now open to challenge, the Commission rejected the proposal and found that the amount offered for its properties appears “fair and equitable and to equal the value of the transportation property, and [is] approved.”
Following Commission and court approval of the plan, South Western’s officers, reversing their previous stand, urged acceptance of the offer by its stockholders and signified their intention of conveying the company’s property to the Central if a majority of the stockholders voted to accept. Thereupon the respondents, who are individual stockholders of South Western, brought an action in the Superior Court of Bibb County, Georgia, where South Western’s principal office is located, asking for an injunction against South Western, its officers and directors, restraining them from certifying the company’s acceptance of the offer to the Interstate Commerce Commission or from selling the railroad’s property to the reorganized debtor if, upon a vote of the stockholders, a “mere majority” of the stock was voted in favor of the plan. The basis of the petition for injunction was the contention that under the laws of Georgia, where South Western was incorporated, the entire assets of the company cannot be sold except upon unanimous approval of the stockholders.
Before a decision was reached in the state court action, a meeting of South Western’s stockholders was held at which the offer of purchase incorporated in the Central’s plan of reorganization was considered. 30,137 shares were voted in favor of acceptance against 9,057 shares favoring rejection. Petitioner, acting as Trustee of the Central, which was not a party to the state court suit, then filed a petition in the bankruptcy court asking that respondents and other stockholders of South Western be enjoined from further prosecution of the state court action, and a temporary restraining order was entered as prayed. Thereupon the state court, of its own motion, entered an interlocutory injunction restraining the officers and directors of South Western from selling its property, on the ground that such a sale under Georgia law requires unanimous consent of the stockholders. Petitioner then amended his petition in the bankruptcy court by bringing to its attention the injunctive order of the state court, and, after holding hearings, the federal district court granted a permanent injunction restraining further prosecution of the state action and declared the state court’s temporary injunction null and void as in excess of its jurisdiction. Upon appeal, the Court of Appeals for the Fifth Circuit, one judge dissenting, reversed the order of the district court. 165 F. 2d 877. We granted the petition for a writ of certiorari because of the conflict between state and federal authority and the importance of the question in the administration of the Bankruptcy Act.
First. The district court’s injunction was based primarily on the premise that the plan of reorganization requires the inclusion of South Western’s lines within the system of the reorganized company. The state action is said to be an attempt on the part of respondents “to prevent the consummation of the plan as respects South Western.” Again, the court held that “the question of the consolidation, merger and sale, and under what conditions South Western may convey its property to the reorganized Company, in consummation of the plan, is not a question of State law; it is a question of Bankruptcy law — a question which arises under the Bankruptcy Act and the Interstate Commerce Act.” The court’s conclusion was, therefore, that although the question whether a Georgia railroad corporation can convey all of its properties without unanimous consent of its stockholders would ordinarily be one of state law cognizable in the state’s courts, under these circumstances the decision was one for the bankruptcy court applying federal law.
We do not agree. The language of the plan and the factors which the Commission took into consideration in arriving at the amount offered South Western for its properties indicate clearly that, so far as the reorganization plan contemplates acquisition of the lessor railroad, the ordinary rules of offer and acceptance were intended to apply. That has invariably been the practice. As a consequence, we have held that the amount which may be offered a lessor is a question of “business judgment”; that “if the Commission deems it desirable to keep the leased line in the system, it must necessarily have rather broad discretion in providing modifications of the lease where, as here, the lessor is not being reorganized along with the debtor. For under that assumption the modification must be sufficiently attractive to insure acceptance by the lessor or its creditors.” Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, 550 (1943). The plan itself recites that the leased lines are to be acquired only “if they can be acquired on the terms hereinafter set forth.” Otherwise, the lease is to be disaffirmed and the property returned to the lessor. In addition, the record is replete with statements by the Commission, the court, and the parties that South Western’s stockholders are to have the choice open to any offeree: an unfettered right to accept or reject.
Under these circumstances, we can see no reason why the ordinary incidents of a sale of the assets of a corporation should not be applicable. One of the most important of these is, of course, the question of the proportion of a corporation’s stock which must be voted in favor of accepting the offer of purchase in order to make its acceptance effective. Since, as the district court held, this would ordinarily be a question of Georgia law, we believe that substitution of any other rule of law is erroneous.
Not the least of the difficulties with a contrary result is the fact that the Bankruptcy Act gives no clue to what proportion of the lessor’s stockholders must vote to accept the offer if state law is not controlling. Section 77 (e) provides that confirmation of a plan requires acceptance by creditors holding two-thirds in amount of the total allowed claims of each class voting on the plan, but that the judge may confirm the plan in any event “if he is satisfied and finds, after hearing, that it makes adequate provision for fair and equitable treatment for the interests or claims of those rejecting it.” But neither the two-thirds vote provision nor the so-called “cram-down” provision applies to a lessor not in reorganization or its stockholders. They apply to “creditors of each class whose claims have been filed and allowed in accordance with the requirements of subsection (c) of this section,” which obviously does not include a lessor-offeree. And, although South Western is a “creditor” under the specific terms of § 77 (b), its stockholders, individually, are not.
The district court sought to find a federal rule permitting acceptance by a simple majority vote of the shareholders in the provisions of § 5 (11) of the Interstate Commerce Act. But that section relates to voluntary mergers, not to the purchase of a leased line as part of a plan of reorganization. The Commission can undoubtedly carry on § 5 proceedings simultaneously with § 77 reorganization proceedings, see United States v. Lowden, 308 U. S. 225 (1939), but that procedure was not followed in this case. The Commission preferred, instead, to carry out the consolidation under the authority of § 77 (b) (5) of the Bankruptcy Act, which provides that the plan of reorganization may include “the merger or consolidation of the debtor with another corporation or corporations.” That power flows from a different source than the power over consolidations under the Interstate Commerce Act. While some of the findings required of the Commission under the two Acts are similar, and § 77 (f) provides that consolidation and merger of the debtor’s property shall not be inconsistent with the provisions and purposes of chapter 1 of the Interstate Commerce Act, their procedural and jurisdictional requirements do not overlap. It may be noted, in addition, that §5(11) contains a proviso that the majority vote provision shall not apply if “a different vote is required under applicable State law, in which case the number so required shall assent.” Whether that proviso is operative when a state’s law requires unanimous consent of the shareholders is a question we need not decide.
Nothing that we have said derogates in any way from decisions of this Court upholding the power of the Interstate Commerce Commission, in the exercise of its statutory obligations, to override state laws interposing obstacles in the path of otherwise lawful plans of reorganization. We have recently reaffirmed that power in cases arising under the Interstate Commerce Act. Nor is the ambit of federal power less broad in cases arising under the bankruptcy laws of the United States. Section 77 (f) of the Bankruptcy Act specifically provides that the plan of reorganization shall be put into effect, “the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” The statute does not, however, give the Commission or court the right to require acceptance by a lessor not in reorganization of an offer for the purchase of its property, and no such power has been asserted by the Commission in this case. The plan of reorganization in effect hands South Western a contract of sale. Whether or not South Western signs the contract must depend not only upon its business judgment, but also upon the charter of the company and the laws of the state of its incorporation. There is therefore no occasion to override state law. The plan implicitly accepts it as controlling. The fact that the law may make acceptance of the offer less likely than would be the case if the offeree were incorporated elsewhere does not change the picture. We do not believe that Congress intended to leave to individual judges the question of whether state laws should be accepted or disregarded, Palmer v. Massachusetts, 308 U. S. 79 (1939), or to make the criterion to be applied the effect of the law upon the prospects of acceptance by the offeree. '
Second. The district court further held that even if Georgia law governs the question of the authority of South Western’s officers to sell its properties the bankruptcy court has exclusive jurisdiction to decide the state law question. We have held that a court of bankruptcy has exclusive and nondelegable control over the administration of an estate in its possession. Thompson v. Magnolia Petroleum Co., 309 U. S. 478 (1940); Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734 (1931). There can be no question, however, that Congress did not give the bankruptcy court exclusive jurisdiction over all controversies that in some way affect the debtor’s estate. One exception is found in the express language of the statute. What it did give is exclusive jurisdiction of the debtor and its property wherever located. § 77 (a). The interest held by the debtor in South Western’s lines was a leasehold estate. Such an estate is the debtor’s “property” within the meaning of the Act. Any controversy involving that estate would have been within the exclusive jurisdiction of the bankruptcy court.
Here, however, the question involves not the debtor’s leasehold, but the reversion in fee held by South Western as lessor. South Western was not in reorganization jointly with its lessee, nor could it have been reorganized in the Central’s proceedings. The controversy which respondents initiated in the state court, and which the district court decided after having enjoined the state proceedings, requires a determination of the rights of the stockholders of South Western inter se to sell their reversionary interest in the property. We think that the interest here involved is not part of the property of the debtor, and that the district court’s assertion of exclusive jurisdiction was error.
In Ex parte Baldwin, 291 U. S. 610 (1934), we said (at p. 615): “All property in the possession of a bankrupt of which he claims the ownership passes, upon the filing of a petition in bankruptcy, into the custody of the court of bankruptcy. To protect its jurisdiction from interference, that court may issue an injunction.” In the Baldwin case this Court upheld the bankruptcy court’s exclusive jurisdiction under § 77 to adjudicate the question of forfeiture by the debtor of an easement of right of way — clearly a part of the property of the debtor of which it claimed ownership. See Thompson v. Magnolia Petroleum Co., supra. In Warren v. Palmer, 310 U. S. 132 (1940), where the debtor under § 77, the New Haven Railroad, was lessee of property but had rejected the lease and was operating the property for the account of the lessor under § 77 (c) (6), we held that the bankruptcy court had exclusive jurisdiction to fix the amount of the deficit resulting from such operation and to declare it a lien upon the property of the lessor. Since the physical property covered by the rejected lease was within the custody of the bankruptcy court, the fact that legal title remained in the lessor was thought to be immaterial. Clearly, control of the physical property must remain in the court which has the ultimate responsibility for operating it. And in order to protect the estate of the debtor from dissipation through losses suffered in the operation of the lessor’s property, responsibility for the determination of the amount of the losses and provision for their recoupment from the lessor was properly lodged in the court supervising the reorganization of the debtor.
Equally clear, however, is the fact that the internal management of the lessor is not properly subject to the court’s control. The anomaly of petitioner’s position is demonstrated by the facts of the case just discussed. The New Haven reorganization was proceeding in a Connecticut federal district court, while the lessor railroad, the Boston & Providence, was in reorganization under § 77 in a Massachusetts district court. The plan of reorganization of the New Haven, like the Central’s plan in this case, contemplated the purchase of the lessor’s property. Since the Boston & Providence reorganization court had exclusive jurisdiction of its property, it can hardly be contended that the New Haven reorganization court could assume exclusive jurisdiction to decide questions arising, for example, between different classes of creditors of the Boston & Providence as to whether the New Haven’s offer should be accepted. Such a result would be incompatible with the Massachusetts district court’s exclusive jurisdiction over the property of the Boston & Providence under § 77 (a). Insofar as the power of the court reorganizing the lessee rests on its jurisdiction over the property of the debtor, the fact that the lessor here is not in reorganization in another court is immaterial.
Further support for this position is found in our decision in Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., supra. The Milwaukee reorganization, in one of its aspects, presented a situation analogous to the one now before us: the lessee was in reorganization under § 77, but no proceedings had been instituted for the reorganization of the lessor of some of its lines, the Chicago, Terre Haute & Southeastern Railway Company. The reorganization plan provided for a new lease to be offered the Terre Haute, which required that the latter scale down its bonded indebtedness so that the interest thereon, which was the rental under the lease, would be substantially reduced. The plan did not, however, differentiate between the four classes of bonds of the lessor with respect to the earning power and character of the security of each, as is required in the reorganization of properties of the debtor. Certain bondholders accordingly attacked the plan as unfair, because it did not attempt to preserve the respective priorities of these bond issues. But we said (p. 546): “The short answer to that objection is that the Terre Haute properties have not been treated by the Commission or the District Court as a part of the properties of the debtor for reorganization purposes. Nor has any question been raised or argued here as to the power of the Commission or the District Court so to treat them. The Commission and the District Court considered the problem solely as one of rejection or affirmance of a lease.” It is abundantly clear that in the case before us, the interest of South Western was similarly considered.
Other provisions of § 77 lend no support to petitioner’s contentions. Section 77 (b), which makes South Western a creditor in the proceedings, does not, as we have pointed out, give the bankruptcy court any control over its internal organization. It is not a creditor which can be bound by the plan without its assent, except to the extent of its claim for damages for breach of the lease and for amounts due it from the lessee. Section 77 (b) (1) provides that the plan may alter the rights of creditors, while § 77 (b) (5) requires that the plan provide adequate means for its execution, which may include merger or consolidation of the debtor with another corporation. This subsection also permits rejection of executory contracts and unexpired leases.
The bankruptcy power unquestionably gives the Commission and court, working within the framework of the Act, full and complete power not only over the debtor and its property, but also, as a corollary, over any rights that may be asserted against it. These rights may be altered in any way thought necessary to achieve sound financial and operating conditions for the reorganized company, subject to the requirements of the Act. The purchase of formerly leased properties does not involve rights asserted against the debtor, however. This Court has said that “The exclusive jurisdiction granted the reorganization court by § 77 (a) is that which bankruptcy courts have customarily possessed.” Meyer v. Fleming, 327 U. S. 161, 164 (1946). We conceive the jurisdiction asserted by the district court over a solvent lessor not in reorganization to be an extension of these traditional powers not justified by any provisions of the Bankruptcy Act.
A serious practical problem would arise if the consequence of rejection of the offer and return of the properties to South Western would be cessation of railroad service on the formerly leased lines. Congress has foreseen that difficulty, however. Under § 77 (c) (6), if the lessor is unable to operate the leased lines following rejection of the lease, the duty devolves upon the lessee to continue to operate the leased lines for the account of the lessor, and such operation may continue after completion of the reorganization of the lessee. We need not speculate upon the eventual disposition of South Western’s properties. Until some final disposition is made, however, we are assured that service will be maintained on its lines, and that the debtor will not be prejudiced because of the duty thrust upon it. Palmer v. Webster & Atlas National Bank, 312 U. S. 156 (1941).
Third. It is argued that Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648 (1935), and other cases applying similar principles support the district court’s injunction of the state action and its determination of the issue there involved. The question specifically before the Court in the Rock Island case was this: “Under § 77 does the bankruptcy court have authority to enjoin the sale of the collateral here in question if a sale would so hinder, obstruct and delay the preparation and consummation of a plan of reorganization as probably to defeat it?” The affirmative answer given by the Court rested upon the inherent powers of a court of equity to prevent the defeat or impairment of its jurisdiction, upon § 262 of the old Judicial Code, which authorized United States courts “to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions,” and upon § 2 (15) of the Bankruptcy Act, 11U. S. C. § 11 (15), which gives bankruptcy courts the power to “Make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this Act.” 52 Stat. 843.
Reliance upon these cases is based, however, upon the fallacy previously adverted to. The action in the Georgia courts in this case does not embarrass or delay the formulation or promulgation of a plan of reorganization. The plan has been formulated and approved. It leaves open to South Western the alternative of selling its properties to the reorganized debtor or of facing disaffirmance of the lease and the risks of separate operation of its lines. No suggestion has been made that a final decision of the state law question will be unreasonably delayed. Under these circumstances, we do not believe that the Rock Island decision provides any support for the district court’s action. As we held in Thompson v. Texas Mexican R. Co., 328 U. S. 134 (1946) at 142: “Forfeiture of leases by the court in advance of a determination by the Commission of the nature of the plan of reorganization which is necessary or desirable for the debtor may seriously interfere with the performance by the Commission of the functions entrusted to it.” See also Smith v. Hoboken R. Co., 328 U. S. 123 (1946). The same considerations do not prevail at a later stage of the proceedings, however, when, pursuant to a plan formulated by the Commission, the lease is forfeited and an offer of purchase substituted in lieu thereof. Unless the offer is a sham and the lessor’s discretion illusory, the plan may be effectively consummated whether the offeree accepts or not. The district court did not merely postpone action which would have hindered the development of the plan; it took to itself the decision of a question which the plan left open for decision elsewhere.
We conclude that, under the narrow facts presented here, the bankruptcy court erred in enjoining the state court suit leading to a determination of the requirements of Georgia law with respect to sale of the entire assets of South Western. This question was already in litigation in the state court when first raised in the federal court. Title 28 U. S. C. § 2283 forbids this exercise of power, since, as we hold, the controversy does not involve property of the debtor within the jurisdiction of the bankruptcy court, and the assertion of jurisdiction by the state court is not inconsistent with the provisions of the Bankruptcy Act.
Affirmed.
Mr. Justice Douglas, with whom Mr. Justice Rutledge concurs, dissenting.
This decision permits control over the plan of reorganization to be taken from the Interstate Commerce Commission and the District Court contrary to the provisions of § 77 and allows a state court to undo what those federal agencies have approved.
The plan approved by the Commission and by the District Court provides for the “consolidation, merger or purchase” of the properties of South Western in lieu of continued operation under the lease, “if the leased properties can be acquired on the terms set forth in the Plan.”
The terms of the acquisition are set forth in the plan. If the leased lines are acquired, South Western shall waive any damages on account of breach of the lease and in respect of equipment. Securities allocated to South Western shall not bear interest or dividends for any period prior to the acquisition. The plan also determines the amount of the allotment to South Western which the Commission and the court approved as “fair and equitable” and “equal the value of the transportation property.”
On February 11, 1947, the Commission submitted the plan to all creditors, including South Western, for acceptance or rejection on or before midnight March 28, 1947. On March 13, 1947, the directors of South Western accepted the plan subject to the assent of the holders of a majority of its stock. The stockholders met on March 28, 1947, and accepted the plan by a vote of 30,137 to 9,057. Accordingly South Western mailed its ballot approving the plan to the Commission.
The result of the balloting was certified by the Commission to the court. Thereafter the court had a hearing and confirmed the plan, specifically reserving for later adjudication the question whether it had power to enjoin action in a state court which attempted to annul the acceptance of the plan by South Western. Subsequently it held a hearing, overruled objections of the minority of South Western’s stockholders and held that the acceptance by South Western was valid under Georgia law. It accordingly issued the injunction involved in this case.
It seems plain to me that the Commission and the reorganization court had exclusive jurisdiction, subject to judicial review, to determine the question of the validity of the acceptance of the plan tendered by the officers of South Western. The validity of the acceptance is, of course, a question of state law. But it has been entrusted by Congress to these federal agencies.
The plan must first be approved by the Commission and then certified to the court. § 77 (d) (e). The court, after hearing, passes on the plan; and if the court approves the plan, it certifies that fact to the Commission. § 77 (e). The Commission then submits the plan to creditors and stockholders (§ 77 (e)), the lessor and its security holders being included in the definition of creditor. § 77 (b). See Group of Investors v. Milwaukee R. Co., 318 U. S. 523, 549. The Commission must then determine the result of the balloting and certify to the judge “the results of such submission.” § 77 (e). The court then “shall confirm” the plan if satisfied (1) that the requisite percentage of each class of creditors and stockholders has been obtained and (2) “that such acceptances have not been made or procured by any means forbidden by law.” § 77 (e).
Question: What is the court whose decision the Supreme Court reviewed?
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207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_crmproc1
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14
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Plaintiff-Appellee, v. Houshang SHEIKH, Defendant-Appellant.
No. 80-1666.
United States Court of Appeals, Fifth Circuit. Unit A
Sept. 3, 1981.
Rehearing Denied Oct. 6, 1981.
Steven H. Swander, Fort Worth, Tex., for defendant-appellant. ■
Paul Coggins, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
Before RUBIN, RANDALL and TATE, Circuit Judges.
TATE, Circuit Judge:
The defendant Sheikh appeals from his conviction, following trial by jury, on charges of (1) conspiracy to import heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 and § 963, and (2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We find the evidence insufficient to support the jury verdict of guilty on the conspiracy charge and, therefore, reverse the conviction on that charge. However, we affirm the conviction for possession with intent to distribute, finding no reversible error in the defendant’s contentions, inter alia, that severance of the trial with codefendants having antagonistic defenses was improperly denied, and that Fourth Amendment rights were violated by a customs search, 19 U.S.C. § 1582, at an airport port of entry (nearest the final destination of the goods, but not the first port of entry in the United States).
The Facts
On January 22, 1980, a crated package was shipped from Shiraz, Iran, by way of Iran Air, destined for delivery to Denton, Texas. The air waybill (or air consignment note) accompanying the crate listed as the shipper a Mr. Ahmad Javadzadeh and as the consignee a Mrs. Nasren Javadzadeh (“Nasren”). The package first arrived in the United States via Air France at the Houston Intercontinental Airport, was then transferred to American Airlines as per the air way bill, and was then transported by bonded carrier (a subsidiary of American Airlines) instead of by air, pursuant to arrangements made by American Airlines, to the Dallas-Fort Worth Airport (DFW) (the airport of final destination, per the waybill), where the package arrived on January 25, 1980. An American Airlines employee sent to the consignee letter notification of the arrival of the package. Meanwhile, the package remained in the American Airlines in-bond room, where international shipments were stored pending United States Customs inspection. (A primary fourth amendment contention made by the defendant is that although Houston — the airport where the shipment first landed — is a port of entry which is the functional equivalent of the border, the DFW airport — the final waybill destination, to which the goods were transhipped by the American airline to which the goods were transferred by Air France for final carriage to point of destination — cannot be considered as such.)
On January 29, 1980, a customs inspector at DFW opened the crate in order to examine the shipped items — a Koran and its display case. On close inspection, he discovered within the sides of the display case several secret compartments containing what was later determined to be 4.4 pounds of heroin. Drug Enforcement Administration (DEA) agents, who were immediately informed of the discovery, determined to prepare the display case for a controlled delivery. The heroin (except for a 14 gram sample that was returned to a hidden compartment of the display case) was removed from the secret compartments and replaced with Nestle’s chocolate. The plastic bags containing the substitute were coated with a powder that stains the skin an orange color on contact. DEA agents also installed in the display case a beeper device wired to emit rapid beeping sounds upon the opening of the hidden compartments.
On February 5,1980, Nasren, the consignee, picked up the crate and drove from DFW to her apartment in Denton, Texas (the address listed on the air waybill). At approximately midnight of February 6, 1980, DEA agents observed the arrival at the apartment of Hamid Javadzadeh Bijari (“Hamid”), Nasren’s brother. Approximately five minutes after his arrival, Ham-id left the apartment carrying the crate, and he put it in the trunk of his ear. DEA agents then followed him as he drove to a Sambo’s Restaurant in Denton, Texas, where he parked next to a Chevrolet Blazer and then entered the restaurant. Inside he met the defendant Sheikh, and the two returned to the restaurant parking lot. There, Hamid transferred the crate from the trunk of his car to the backseat of Sheikh’s Blazer. Both then entered their respective vehicles and returned to Nasren’s apartment.
At approximately 3:00 a. m. on the morning of February 7, 1980, Sheikh left the apartment and entered the Blazer (with the crate still inside) and headed toward Dallas. DEA agents followed Sheikh to a motel in Greenville, Texas. At no time prior to this stop did DEA agents within the range of the beeper detect a change from the slow beeping sound emitted by the beeper device to that of a rapid beep (which was to be triggered upon the opening of the secret compartments in the display case). Within minutes of his arrival at the motel room, Sheikh removed the display case (the shipping crate had been discarded in a dumpster at a stop en route) from the Blazer and took it inside his motel room. About two minutes later Sheikh returned to the Blazer, this time to remove a tool box. Soon after Sheikh re-entered the motel room, DEA agents detected a change in the slow beeper signal to that of a rapid beeping sound, an indication that the hidden compartments of the display case had been opened. Immediately thereafter, Sheikh exited the mote! room and headed toward the Blazer. However, DEA agents effected his arrest at the door of the Blazer before he could enter. Agents observed at the time of his arrest that Sheikh’s hands were stained the same orange color as the powder used to dust the plastic bags inside the secret compartments of the display case. Hamid and Nasren were arrested later the same day at Nasren’s apartment.
On February 21, 1980, a federal grand jury returned a two-count indictment charging that (1) on or about January 19 and February 7, 1980, Sheikh, Nasren, and Hamid conspired with each other and with others unknown to import heroin into the United States and to possess heroin with the intent to distribute (violations of 21 U.S.C. § 952(a) and § 841(a)(1)) in violation of 21 U.S.C. § 846 and § 963, and (2) on or about February 7, 1980, Sheikh knowingly and intentionally possessed with intent to distribute approximately 4.4 pounds of heroin, in violation of 21 U.S.C. § 841(a)(1).
All three co-indictees were tried together at a jury trial. The jury returned a verdict of guilty as to Sheikh on both counts and found Nasren and Hamid not guilty on the conspiracy charge, the only count upon which these eodefendants were charged. Sheikh was sentenced to ten years on both counts, with the terms to run consecutively. He was also assessed a special parole term of five years on both counts. Sheikh now appeals to this court for review of his convictions.
The Issues
The defendant Sheikh urges reversal of his convictions on the following contentions: (1) the trial court erroneously denied his motions for judgment of acquittal urged on the basis of the insufficiency of the evidence to support the jury verdict of guilty on the conspiracy charge; (2) the trial court erroneously denied his motions for severanee made both pre-trial and during the trial of the three defendants; (3) there was a significant variance between the amount of heroin Sheikh was charged with possessing as set forth in the indictment and the amount proven at trial to have been in his possession; (4) the trial court erred in admitting evidence obtained in violation of the defendant’s Fourth Amendment rights; and (5) the trial court violated his Sixth Amendment right to confrontation by its failure to conduct an inquiry to determine whether the codefendant Hamid justifiably asserted his Fifth Amendment privilege against self-incrimination.
1. The Conspiracy Charge
Sheikh and his codefendants Nasren and Hamid were charged in Count One of the indictment with conspiring with each other and with others unknown to import heroin and to possess heroin with intent to distribute. Sheikh was found guilty of the charged conspiracy despite the acquittal of Nasren and Hamid. Sheikh argues that the district court erred in denying his motions for judgment of acquittal in light of his codefendants’ acquittal and the insufficiency of the evidence to prove that he conspired with “others unknown.” We agree that a judgment of acquittal on the conspiracy conviction should have been granted based on the insufficiency of evidence to support the jury verdict and, therefore, reverse the judgment of conviction on Count One.
The general rule of this circuit is that the conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged coconspirators on trial are acquitted. United States v. Klein, 560 F.2d 1236, 1242 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978); United States v. Peterson, 488 F.2d 645, 651 (5th Cir. 1974); United States v. Musgrave, 483 F.2d 327, 333 (5th Cir. 1973), cert. denied 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). However, a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy. United States v. Klein, supra, 560 F.2d at 1242; United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir. 1977); United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976); United States v. Pena, 527 F.2d 1356, 1365 (5th Cir. 1976), cert. denied 426 U.S. 949, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); United States v. Goodwin, 492 F.2d 1141, 1144-45 (5th Cir. 1974). In the instant case, with the acquittal of Sheikh’s two codefendants, the conspiracy conviction can only be upheld if there is sufficient evidence of the existence of an unnamed, unindicted coconspirator; the indictment (see note 2) having charged the three named defendants with having conspired with one another and “with others unknown” to import heroin from Iran and to possess it with intent to distribute it.
In reviewing the sufficiency of the evidence to support a jury determination of guilty, we are required to consider all the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Where the trial court has denied the defendant’s motion for judgment of acquittal, the evidence must be considered in the most favorable light to the government, in order to determine whether a reasonably minded jury could have concluded that the evidence was consistent with guilt and, in circumstantial evidence cases, inconsistent with every reasonable hypothesis of innocence. United States v. Marable, 574 F.2d 224, 229 (5th Cir. 1978); United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978); United States v. Pruett, supra, 551 F.2d at 1369; United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977). We find that under the evidence a reasonably minded jury must have necessarily entertained a reasonable doubt as to Sheikh’s conspiring with “others unknown.”
The theory advanced by the government in support of the charged conspiracy with “others unknown” is essentially that Sheikh must have had a coconspirator since the package was shipped from Iran after Sheikh had left the country, and it was addressed to the same misspelled “Oake” Street address in Denton, Texas, as found under Nasren’s name in Sheikh’s address book. The following evidence appears in the record relevant to the proof of the existence of a coconspirator in Iran and of a conspiracy: (1) Sheikh knew a Nassir Alloi, who lived near Shiraz, Iran (the city listed on the air waybill as the shipper’s address and from which the package was sent) and whose telephone number was 21507 (the number given on the air waybill as the shipper’s); (2) while in Iran from late December of 1979 until January 17, 1980, Sheikh visited with Alloi; (3) Sheikh called Alloi from the United States on January 29, 1980 (the date that Sheikh became aware that the package addressed to Nasren had arrived at DFW); (4) in September of 1979, Alloi sent to Hamid as gifts three ornamental picture frames, one of which Sheikh expressed a particular interest in and took as his own; (5) in December of 1979, prior to his leaving for Iran, Sheikh made several calls to a number in Iran listed in Sheikh’s address book (directly under the listing for Nassir Alloi) as that of a Nassir Shirazy, who Sheikh claims is not the same person as Nassir Alloi.
The evidence proves at most that Sheikh had in Iran possibly two associates with whom he communicated prior to his trip to Iran, while in Iran, and after learning of the arrival of the package at DFW. Mere association between persons, however, cannot suffice as proof of a conspiracy. United States v. Fitzharris, 633 F.2d 416, 423 (5th Cir. 1980); United States v. White, 569 F.2d 263, 268 (5th Cir. 1978). Nor can suspicion, however strong, serve as proof of a conspiracy. Causey v. United States, 352 F.2d 203, 207 (5th Cir. 1965). While the government need not prove the existence of a formal agreement or otherwise rely on direct evidence to establish a conspiracy, see Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974), it must do more than pile “inference upon inference” upon which to base a conspiracy charge. Causey v. United States, supra, 352 F.2d at 207. Rather, the government must prove beyond a reasonable doubt that the defendant and Alloi, or others unknown, knowingly entered into a conspiracy by which they agreed to import heroin into the United States and to possess it with intent to distribute. See United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977); United States v. Barrera, supra, 547 F.2d at 1255.
Thus, while it is reasonable to speculate, as the government suggests, that Sheikh travelled to Iran to meet Alloi and arrange shipment of the heroin to the United States for distribution, and later called him to confirm that the heroin had been received as per their agreement, such speculation does not constitute proof beyond a reasonable doubt that the person in Iran knowingly agreed or conspired with Sheikh to perform acts with the intent to import heroin into the United States. See United States v. White, supra, 569 F.2d at 268. It is just as reasonable to infer from the evidence that while Sheikh was in Iran he made arrangements to have a person in that country mail to Nasren what the shipper believed to be only a Koran in a display case.
In the absence of evidence inconsistent with the latter hypothesis, or of any evidence from which the jury might infer a knowing agreement by the transhipper to participate in the importation of heroin into the United States, we must reverse the conspiracy conviction on the basis of insufficiency of the evidence. See, e. g., United States v. Fitzharris, supra, 633 F.2d at 422-23; United States v. Caro, supra, 569 F.2d at 416-19; United States v. White, supra, 569 F.2d at 267-68; United States v. Pruett, supra, 551 F.2d at 1368-69; United States v. Barrera, supra, 547 F.2d at 1256-57; United States v. Pena, supra, 527 F.2d at 1364-65.
2. The Severance Issue
At the trial below, Sheikh repeatedly urged — and was each time denied — his motion for severance first presented pretrial. The trial court’s denial of the motion, Sheikh insists, deprived him of his right to a fair trial. Specifically, Sheikh complains that he was subjected to trial alongside codefendants who asserted antagonistic defenses and who, in effect, aided the government in the prosecution of its case against Sheikh. While the issue raised presents an extremely close question of error, we cannot say — under the specific circumstances before us, and especially in light of the trial court’s actions taken to avoid possible prejudice to Sheikh — that he was denied a fair trial by the district court’s denial of severance.
The decision to grant or to deny a motion for severance rests within the sound discretion of the trial court, which will not be overturned on appeal without an affirmative showing of an abuse of discretion. Rule 14 of the Federal Rules of Criminal Procedure, providing for relief from joinder of defendants, has been interpreted to require that prejudice to the defendant attendant to a joint trial be balanced against the interests of judicial economy to determine whether severance ought to be granted. United States v. Garza, 563 F.2d 1164, 1166 (5th Cir. 1977), cert. denied 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). The degree to which prejudice may be lessened by other remedial court action should also be considered. Id. Thus, the complaining party should be granted relief on appeal only upon a showing of compelling prejudice, which the trial court could not alleviate in the absence of severance and which effectively denied the party a fair trial. United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981); United States v. Mota, 598 F.2d 995, 1000 (5th Cir. 1979), quoting United States v. Swanson, 572 F.2d 523, 528 (5th Cir. 1978), cert. denied 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978).
Sheikh attempts to establish compelling prejudice in two respects. First, he claims that his defense at trial was antagonistic to the defenses asserted by his codefendants. Both Sheikh and the codefendant Hamid testified that they drove together in Sheikh’s Blazer from Panama City, Florida (where both lived) to Denton, Texas. Both testified that they rented a car at DFW which Hamid used to drive to Nasren’s to pick up the package while Sheikh remained at the Sambo’s Restaurant in Denton. Neither admitted, however, to having any knowledge of the existence of the hidden heroin or to having any reason to believe the other may have known of the heroin.
Despite the above consistencies, Sheikh contends that the thrust of the defenses was so antagonistic as to deny Sheikh a fair trial in the absence of severance. In essence, Sheikh represented at trial that (1) he agreed to take Hamid to Denton because he, Sheikh, wanted to try out his new Blazer and possibly visit friends in Houston, Texas; (2) it was Hamid’s idea to rent a car (used later to pick up the crated package from Nasren’s apartment) at DFW before going on to nearby Denton; (3) upon their arrival in Denton, it was Hamid who suggested that Sheikh wait at the Sambo’s Restaurant in Denton (where the package was transferred from the rented car to Sheikh’s Blazer) until Hamid returned from Nasren’s apartment (where Hamid picked up the package); and (4) the package belonged to Hamid, who asked Sheikh to take it back to Panama City. Furthermore, Sheikh testified that the envelope of lidocaine (used to cut down cocaine and heroin) found in Sheikh’s wallet at the time of his arrest was given to him by Hamid.
Hamid, on the other hand, testified that (1) he intended to visit Nasren long before he became aware of the existence of the package; (2) Sheikh admitted to having sent the package from Iran to Nasren’s address; (3) Sheikh said he sent packages from Iran to different addresses in the United States in order to insure that they were gotten out of the country successfully; and (4) it was Sheikh’s idea to rent the car for Hamid and then have Hamid pick up the package and meet Sheikh at the Sambo’s Restaurant. Hamid also denied having given Sheikh the envelope of lidocaine. The codefendant Nasren, consistent with her brother’s testimony, defended that it was her understanding that the package sent to her belonged to Sheikh..
The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. United States v. Horton, supra, 646 F.2d at 186; United States v. Marable, supra, 574 F.2d at 231. On appeal, however, the trial judge’s denial of severance may be reversed only on a showing that the defendant suffered “compelling prejudice.” United States v. Horton, supra, 646 F.2d at 186. In the instant case, the crux of the defense of each defendant was that he or she was ignorant of the existence of the heroin in the hidden compartments of the display case. To some extent, then, the defenses were not antagonistic. However, additionally each defendant contended that the crate containing the display case belonged to the other. Undoubtedly, in this respect, the defenses are so antagonistic as to be irreconcilable and mutually exclusive. Nevertheless, we do not find this antagonism sufficient under the particular facts to establish that Sheikh suffered the compelling prejudice that requires reversal of his possessory conviction because of the denial of severance. In so concluding, we emphasize that the essence of the defense of each codefendant — the absence of guilty knowledge — was not antagonistic with that of the other, and that no defendant indicated that he or she knew or believed the other to have had knowledge of "the existence of the heroin. To the contrary, Hamid testified that he had no reason to doubt the veracity of Sheikh’s explanation that it was necessary to send articles from Iran to various addresses in the United States in order to get them safely out of the former country. In addition, the evidence concerning Sheikh’s involvement with the shipments, summarized in our discussion of the sufficiency of the evidence to support the conspiracy conviction, together with the evidence concerning Sheikh’s actions in driving alone to Greenville with the package and, thereafter, in opening it, point so strongly to Sheikh’s possession that there was little, if any, actual prejudice to him in the joinder of his codefendants. The prejudice was to the codefendants, but they did not seek severance and were, indeed, acquitted.
The defendant Sheikh also attempts to establish compelling prejudice resulting from the denial of severance on the basis that his codefendants exhibited at trial an antagonistic attitude toward him. In effect, he claims that he was prosecuted not only by government counsel but also by counsel for Hamid and counsel for Nasren.
The taking of an adversarial stance on the part of counsel for codefendants may generate trial conditions so prejudicial to the codefendant under multiple attack as to deny him a fair trial. See United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973); United States v. Valdes, 262 F.Supp. 474 (D.P.R. 1967). Considering the length of the trial (it lasted approximately three weeks) and the trial judge’s constant efforts to insure that the attorneys for Nasren and Hamid did not themselves act as prosecutors, we do not find that isolated instances of concerted attack as found in the trial court record created the sort of compelling prejudice necessary to warrant a severance.
In sum, after a careful review of the record, we are not left with a definite and firm conviction that the defendant Sheikh may have been prejudiced by the trial court’s refusal to grant the motion for severance made only by Sheikh. See 1 Wright, Federal Practice and Procedure: Criminal § 227 (1969). We reach this conclusion keeping in mind the view that in conspiracy cases persons jointly indicted should ordinarily be tried together. See United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973), cert. denied 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974); 1 Wright, supra, § 223, but see id., § 226. In the face of possibly antagonistic defenses and hostility among codefendants, the trial judge properly and successfully lessened the degree of possible prejudice to Sheikh through careful trial supervision. Under these circumstances, Sheikh was not denied a fair trial.
3. The Variance Between the Indictment and the Evidence Presented at Trial
Sheikh asserts that the trial court erroneously denied his motion for judgment of acquittal on the possession with intent to distribute conviction, charged by Count Two, because of the significant variance between the allegations of that count of the indictment and the proof at trial. Count Two charged Sheikh with possessing, on or about February 7, 1980 (the date of his arrest), with intent to distribute, 4.4 pounds of heroin. At trial, the government proved that Sheikh was found in possession at the time of his arrest of 14 grams (i. e., about one-half ounce, but see note 9) of heroin (i. e., the amount retained in the display case hidden compartments from the original 4.4 pounds of heroin discovered pursuant to the earlier customs search). Although a variance may have existed, we reject the defendant’s contention that the variance is material or warrants a judgment of acquittal on the charge of possession of 4.4 pounds of heroin with intent to distribute.
Not every variance between the indictment and the proof is fatal to a conviction. In order for a variance to be fatal, thus mandating reversal, it must affect the substantial rights of the accused either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or (2) by affording him insufficient protection against reprosecution for the same offense. United States v. Juarez, 573 F.2d 267, 278-79 (5th Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Lambert, 501 F.2d 943, 947-48 (5th Cir. 1974) (en banc). The defendant has failed to prove how the variance in proof of the amount of heroin actually possessed on the date of his arrest affected his substantial rights. There was no variance in proof as to the date of possession and substance possessed. Thus, in the absence of a showing to the contrary, we find the defendant was sufficiently notified of the crime charged to enable him to present a proper defense. Nor is there convincing argument made that the defendant could not successfully plead former jeopardy against reprosecution. We thus hold that the variance between the amount of heroin set forth in the indictment and the amount proved is not fatal and cannot form the basis for reversal of the conviction on Count Two.
Based upon the government’s failure of proof that Sheikh possessed the 4.4 pounds of heroin as charged in the indictment, Sheikh raises a subsidiary evidentiary issue. In particular, he urges as reversible error the trial court’s admission into evidence of testimony of (1) the street level dosage (generally found to be one to two percent pure heroin) equivalent in grams and pounds (96,214 grams or 212 pounds) of the 4.4 pounds of heroin (between 73%-76% pure) found in the display case during the customs search, and (2) the street value (ranging from $50-$100) of a gram of heroin at the street level dosage.
Evidence of the price or the quality of a narcotic possessed is generally relevant to prove intent to distribute. United States v. Palmere, 578 F.2d 105, 108 (5th Cir. 1978), cert. denied, 99 S.Ct. 1026, 439 U.S. 1118, 59 L.Ed.2d 77 (1979).
Thus, the street level dosage equivalent of the 4.4 pounds of heroin proved to have been imported into the United States from Iran was relevant to prove intent to distribute under the conspiracy count (Count One). Moreover, the testimony concerning the level of pure heroin generally found in a street level dosage was relevant to prove intent to distribute on the basis of possession of the 14 grams of heroin found to be 76% pure. The trial court’s admission of the testimony presents no reversible error.
4. The Alleged Fourth Amendment Violations
At trial, the defendant Sheikh objected to the introduction of evidence obtained as the result of (a) the warrantless customs inspection of the package at DFW, (b) the warrantless attachment and use of an electronic beeper inside the package, and (c) the warrantless search of the defendant’s motel room at the time of his arrest. On appeal, the defendant raises as reversible error the trial court’s admission of this evidence, alleged to have been obtained in violation of the defendant’s fourth amendment rights. We find no reversible error.
(a) The Customs Inspection at DFW
The substance of the defendant’s complaint as to the warrantless search at the DFW airport is: Since the air shipment had first entered the United States at the Houston airport port of entry before its transfer to the DFW airport port of entry, a customs search under 19 U.S.C. § 1582 (see note 10) (authorizing routine customs searches upon entry into the United States) was not authorized. Since therefore the search was not made at the functional equivalent of an international border but rather at an inland city to which the package had been shipped following entry into the United States, reasonable suspicion was required to justify the warrantless search. 19 U.S.C. § 482 (see note 14).
On January 29, 1980, customs inspector Cromer opened the crated package (containing the Koran, the display case, and the heroin) while it was stored in the American Airlines in-bound room, an area set aside by the carrier to house international freight that has not yet cleared customs. By way of this warrantless customs inspection, pursuant to which the 4.4 pounds of heroin was discovered, the DEA investigation was set in motion which ultimately led to the defendant’s arrest. Sheikh attempted by a motion to suppress to prevent the government’s introduction of the heroin thus obtained. The trial court denied the defendant’s motion on the basis that the warrantless inspection was authorized by 19 U.S.C. § 1582, 19 C.F.R. § 162, providing for warrantless customs searches of persons, baggage, and merchandise coming into the United States. We agree.
Warrantless searches made at the international borders of the United States are considered reasonable under the Fourth Amendment simply by virtue of the fact that they occur at the border. United States v. Ramsey, 431 U.S. 606, 616-20, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977). Moreover, routine border searches may be conducted regardless of whether customs officials have a reasonable or articulable suspicion that criminal activity is afoot. United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978), cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Himmelwright, 551 F.2d 991, 993-994 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See also Carroll v. United States, 267 U.S. 132,154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). We have held that 19 U.S.C. § 1582 provides statutory authorization for warrantless border searches by customs officials of all persons, baggage, and merchandise entering the United States. United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978). The warrantless border searches do not require either probable cause or individualized suspicion of criminal activity. Id. See also United States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979); United States v. Odland, 502 F.2d 148, 151 (7th Cir. 1974).
The applicability of § 1582 in the case before us thus depends upon whether, for purposes of the warrantless search by the customs officer of the package originating outside the United States, DFW can be considered an international border or its functional equivalent.
The functional equivalent of an international border includes, by way of example, the United States airport that serves as the destination for a nonstop flight from a foreign point. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Himmelwright, supra, 551 F.2d at 993-94. Such an airport is considered the functional equivalent of a border because of (1) the existence of reliable indications that the thing to be searched is of international origin and has not been changed in any way since entering the United States; and (2) the degree of regularity with which searches at the point in question are conducted such that the intrusion is minimal, the existence and function of the checkpoint are known in advance, and there is little discretionary enforcement activity. United States v. Brennan, 538 F.2d 711, 715-16 (5th Cir. 1976). For these same reasons, we consider DFW, under the circumstances here presented, the functional equivalent of a border.
. [20] In the instant case, the air waybill accompanying the package indicated that it was sent from Iran by way of Iran Air. The waybill issued by Iran Air stated the airport of final destination was Dallas DFW, also indicating intermediate transfers at Paris (where it was to be transferred to Air France), and Houston (where Air France was to transfer it to American Airlines for final transit to Dallas DFW airport). The package first arrived in the United States on January 24, 1980, via Air France at the Houston Intercontinental Airport. It was immediately transferred from that Houston freight terminal to the American Airlines freight terminal. American Airlines then shipped the package by truck to its freight terminal at DFW. At all times after the package entered the United States until it was searched at DFW by customs inspector Cromer it remained under a United States customs bond. Prior to the January 29,1980 search at DFW, the package had not cleared customs, and the evidence negatives any indication it had been tampered with. Thus, the evidence shows reliable procedures to insure that the package came from a foreign point and remained in the same condition until an actual customs inspection could be made. (In this case, the customs inspection developed into a customs search.) Additionally, since DFW is itself an international port of entry, foreign shippers are put on notice that a package passing through that airport will be subject to a routine customs search, if it has not previously been subject to customs inspection. A customs official testified that under customs procedures the port of entry of a consignment is normally considered the international port of entry closest to the consignee’s address; the consignee or a representative must (at the port of entry) clear the shipment through customs as dutiable or nondutiable.
Under these circumstances, for purposes of the customs search, the DFW international port of entry at Dallas was the functional equivalent
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
GILLETTE SAFETY RAZOR CO. v. ESSEX RAZOR BLADE CORPORATION.
No. 5760.
Circuit Court of Appeals, Third Circuit.
March 5, 1936.
Henry R. Ashton, of New York City, and Pitney, Hardin & Skinner, of Newark, N. J., for appellant.
C. Palmer, of New York City, and Saul Lehr, of Elizabeth, N. J., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
This case concerns the art of Gillette safety razors. We are so familiar with the use for years of such razors that it is hard for us to conceive there could now be any marked improvement therein. The original Gillette patent was before this court in Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421. In a later case, American Safety Razor Corporation v. Frings Bros. Co., 62 F.(2d) 416, 417, this court noted “that the safety razor art is a thoroughly occupied field. Originally novel and radical in character and for years the subject of patentable novelty and the source of large profits, the field has been thoroughly developed, and as a result thereof and the employment of skilled engineering in its progress, improvement and development are naturally to be looked for.” Adhering to those views, we approach the questions involved in the present case and inquire first whether the patentee, Gaisman, disclosed anything useful and a material improvement in the razor art; and secondly, if so, was it merely the engineering progress incident to, and to be expected in, that art, or was it such a departure along new lines as to amount to invention? As the opinion of the trial judge was not printed in the record, we here refer to it, 13 F.Supp. 505, and make it part of the record.
In Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 F. 421, 422, two propositions were by this court determined: First, that “a ribbon or wafer razor-blade, so thin as to require external support of its cutting edge, was original with Gillette”; and, second, his claim for such a blade was. not invalid, because the blade was not per se operative, but, citing authorities, we held: “As to our fifth conclusion, we note it should be added that claim 2 is not invalid because not for an operative device, for, if such were the law, patentability must have been denied to Elias Howe for ‘the grooved and eye-pointed needle’ which constituted his seventh claim.”
Based on this holding, the Gillette Company enjoyed, until their patent expired, a monopoly of their so-called safety razor. We say “so-called safety razor,” for in point of fact it was not a safety razor, as the experience of users of this original Gillette razor has been that they have cut themselves on it quite frequently and now continue to do so. Indeed, the statement of the trial judge, “I generally cut myself,” is the experience of all of us safety razor users. During the eighteen years that have passed between the year 1904, when the Gillette patent was granted, and 1922, when the problem of a non-face cutting razor was solved, no one solved, or indeed recognized, that problem, although this record is replete with patents many in number, evidencing attempts to improve the safety razor.
Indeed, the only attempt in the line of safety is the patent of Fretwell, No. 1,467,-930, considered by this court in Fretwell v. Gillette Safety Razor Co., 78 F.(2d) 868, the object of which was to provide a blade of such character “that in the event of an insane person seeking to pick at the blade with a view to removing the same, the blade will be broken into fragments and rendered unfit for use.” But this patent, as also that of Hartman, left no impress on the art and were but abortive conceptions with no factory birth or sales maturity.
Curiously enough, the solution of safety came not from the efforts of the Gillette engineering staff in an attempt to extend the monopoly of its expiring patent, but from a competing company. The latter’s president, Gaisman, was an experienced razor man. His first effort to improve safety razor blades was his patent No. 1,011,-938, which had aimed to reduce the breaking of blades when bent, by tempering the outer or cutting edge of the blade to the desired degree and annealing or tempering to a lower degree the central longitudinal portion. The object of such treatment was “to permit the blade to bend or to curve between the longitudinal edges without danger of breaking or cracking.” While this patent is not here involved, it is of interest as showing Gaisman’s first effort to improve was along the line of preventing blade breaking and not preventing blade cutting of the face. It is also of interest as showing for the first time in the art the pictorial idea of a square opening in a blade but to which no function was attributed.
On November 21, 1922, when Gillette’s patent for’ the flexible blade had expired, Gaisman applied for, and was granted, patent No. 1,633,739, here in suit. From his specification we see his object was to improve the thin, Jribbon-like strip of the Gillette razor which he was now free to use. This is shown by the first nineteen lines of the specification. Fie there points to the fact that in that type of razor' “the blade and the backing are retained from rotation on the guard by the cooperation of said pins with the guard and the clamping of the blade between the guard member and the backing member, so that the blade performs no function in retaining any of said parts with relation one to another.”
We here note, as above stated, that in this Gillette type of razor Gaisman sought to improve, the blade was a passive, non-controlling and nonoperating element in fixing, determining, or maintaining the relation of the backing member and the guard member, and that his invention was in now making the blade the dominating and exclusive factor which positioned, maintained, and kept in proper cutting position, first, the backing member; second, the guard member; and, third, the proper cutting edge of the blade itself. This he set forth in his specification in simple clearness, viz.: “The object of my invention is to provide a safety razor wherein a blade will cooperate with a guard member to retain the blade in shaving relation thereto and the blade will also cooperate with a backing member to retain the latter in proper relation to the blade for shaving purposes, so that the position of the backing member with regard to the guard member is maintained by the blade and not by the cooperation of said members together in the well known manner I have described above.”
That no one had done this, or even conceived this, before, is clear, but its significance and effectiveness in making the Gillette Razor a non-face cutting and an actual safety razor is not apparent at first sight.
Addressing ourselves to a study thereof, we note the basic fact that the cutting edge of the blade must be accurately placed initially with reference to the guard that when so placed or positioned, the guard will keep the cutting edge from being so far forward as to cut the face and yet from being so far back that it will not cut the beard. Now this position zone between face cutting and nonshaving has been accurately determined and is proven without any contradiction by the production engineer of the plaintiff as follows:
“Q. To what extent is a safety razor a precision instrument, Mr. Smith? A. It is a precision instrument because it must be made so that there is the least possible variation in blade exposure.
“Q. What are the limits that you found possible commercially or desirable commercially? A. Blade exposure must not be less than zero nor preferably more than 8-1/1000 of an inch.”
It therefore follows that the usable, permissible, workable position zone within which the blade will cut 'the beard, and not cut the flesh, is the almost microscopic zone of 8/1000 of an inch in breadth. Outside of that zone the blade will either flesh-cut or non-hair-cut, and the zone" is so narrow that it cannot be located by sight or determined by touch. Indeed, as the diajneter of a hair is 1/250 of an inch, which is equivalent to 4/1000 of an inch, the width of the proper cutting position zone may be aptly described as a “hair breadth.” From this it follows that if it is done, the razor must necessarily automatically do two things, first, locate the cutting edge of the blade initially in this microscopic safety zone, and, secondly, must immovably hold it there during the shaving operation. And if the patentee’s device so acts as to effect these two things, the device would seem to be of high merit, an important advance, and one worthy of patent protection. If after having gotten the proper cutting edge of the blade, it were to be soldered or fastened in that position, that might solve the problem, but you cannot do that in a razor. It must be capable of being taken apart and put together often and speedily. To do this rapidly and safely, the parts must not be too rigidly or too firmly attached. These facts created another necessary factor for which due allowance must be made and counteracted, that is the element called “tolerance,” which created a limited freedom of motion, movement or “slack.” This tolerance problem was met by the patent in suit. To illustrate: The uncontradicted proo f in that regard is as follows : “In an old style Gillette razor the two outer pins on the cap positioned both the blade relative to the cap and the guard relative to the cap. In order that the blade shall fit on the studs and that the guard shall fit on these studs, the holes have to be somewhat larger than the pins. In this arrangement it is possible for the blade to move in one direction, to take up the clearance between the large holes and the small studs, and for the guard to move in the opposite direction. The result is that the amount of blade exposure which is an important characteristic of the safety razor may vary on account of this necessary looseness by about 5-1/1000 of an inch.”
Remembering the testimony earlier quoted that the zone of movement of the cutting edge was but 8/1000 of an inch, we can see that when thus limited 8/1000 of an inch of allowable blade exposure was still subject to 5/1000 shift due to the “tolerance” factor, and consequently the proper cutting edge exposure might be thus changed to an over or under exposure position. And the difference between the old type Gillette blade and the Gaisman blade is proven without contradiction, viz.: “There is only a 3-1/1000 of an inch, a reduction as compared with the Gillette method of positioning of 2-1/1000, or 40 per cent.” The effect of this 2/1000 reduction is established by the uncontradicted proof, which is:
“Q. And do I understand correctly that allowing the same manufacturing tolerance for the two types of structures you will get more accurate determination of the blade exposure with the Gaisman construction than with the old Gillette construction ? A. Yes, sir, 40 per cent, more accurate as far as those features are concerned.
“Q. So by the same token you might allow greater manufacturing tolerances with the Gaisman construction and still get as good results as with the old Gillette construction, is that correct? A. Yes, sir.
“Q. Which would be cheaper ? A. Yes, sir.”
The Gaisman device and how it operates and overcomes these difficulties is clearly and tersely set forth in the specifications as follows: “In carrying out my invention I provide a guard member and a blade having cooperative means to retain the blade in shaving position on the guard, a backing member for the blade, means cooperative between the blade and the backing member whereby the blade retains the backing member in operative relation to the blade and the guard, and means to cause the guard member and backing member to clamp the blade therebetween.”
The details of its operation, the Goodwill razor in which the plaintiff embodies the Gaisman patent which it has acquired, and the defendant’s alleged infringing blade, are all set forth in the accompanying illustrative sketch:
And the plaintiff’s brief correctly states in language which we adopt, viz.:
“The guard of the Gaisman razor is provided with a diamond shaped (non-circular) projection lb. The blade is provided with a complementary opening 2a which fits over the projection lb. This positions the blade, and consequently also its cutting edges accurately with respect to the teeth of the guard. With the blade thus accurately positioned on the guard, the next step is to position the cap accurately with respect to both the blade and guard. This is accomplished by means of the four recesses 2b near each of the four corners of the blade which are entered by the four projections 6 on the cap. The screw-threaded spindle 4 on the cap passes through the center of the blade and through the opening 8 in the guard and serves merely to draw the parts together when the razor handle is screwed up. The two ends of the guard are cut away at 7 so that there is no engagement whatsoever of the cap projections 6 with the guard. And, similarly, there is no engagement whatsoever of the guard projection lb with the cap, the central zone 3a of the cap being recessed to prevent any such engagement.
“Thus it clearly appears that the blade is the sole connecting link between the guard and cap of the razor and it serves, because of its engagement in its central area with the projection lb of the guard and its engagements at its four corners with the projections 6 of the cap, as a key whereby the guard and cap are both accurately positioned with respect to each other and also with respect to the cutting edges of the blade.
“Exactly the same is true of defendant’s blade as used in the Gillette Goodwill razor. Referring to the righthand column of the Exhibit, it will be seen that the guard is provided with two, instead of one, diamond shaped (non-circular) projections lb over which fit the complementary openings 2a in defendant’s blade. These two projections lb on the guard and the openings 2a in the blade position, and consequently also its cutting edges, accurately with respect to the teeth of the guard. Similarly the cap is positioned accurately with respect to both the blade and guard by means of the four recesses 2b at each of the four corners of the blade which are entered by the four projections 6 on the cap. Also, as in the Gaisman razor already described, the screw-threaded spindle 4 on the cap passes through the opening 8 in the guard and serves merely to draw the parts together when the razor handle is screwed up. The guard of the Goodwill razor is likewise cut away at 7 so that there is no engagement whatsoever of the cap projections 6 with the guard. Nor is there any engagement between the projections lb of the guard and the cap, the cap being cut away at 3a to prevent any such engagement.”
Such being the case, it will be seen that Gaisman’s disclosure warranted the grant of his claims, viz.:
“1. A blade having a non-circular opening. substantially centrally disposed to retain the blade in shaving relation to a guard member, said blade having means spaced from said opening to cooperate with a clamping member to retain the latter in •shaving relation to the blade independent of the guard member.
“2. A blade having an angularly shaped opening disposed substantially centrally in the blade to cooperate with a guard member to retain the blade in shaving position thereon, and said blade being provided with means spaced from said opening to cooperate with a backing member to retain the latter in shaving relation to the blade and to the guard member.”
This combination was, as a whole, new in the art. By its blade, through its corner slots, co-operating with the four studs of the cap or backing and by the blade’s angular, noncircular opening co-operating with the angular, noncircular projection of the guard on the other member, the hitherto passive, flexible blade of the old Gillette razor became the dominant factor which mechanically determined the initial and safe position of the cutting edge and mechanically held it in that safe and efficient position, rigidly and without variance or shadow of turning. For the first time in the art it produced a safe, non-face cutting Gillette razor, and the fact that, as shown by the uncontradicted proofs, millions of such new razors have been made and sold by the plaintiff, demonstrates its worth. That the defendant’s blade is substantially a copy of Gaisman’s device is clear. The defendant makes no razor of its own, it is usable on plaintiff’s Goodwill razor, and the inference of its being made for use on Gillette razors leaves no doubt in our mind that the officers of defendant, who were former Gillette officers and were familiar with it, manufacture it for such use and that they are contributory infringers. In view of the above, the record is remanded with instructions tq enter a decree of validity of the claims and for an injunction and accounting.
Lest it should appear we have overlooked it, we mention the Canadian decision, which, we have duly considered before arriving at our conclusion.
It is to be noted that while Ridge Thomas’ decision in 60 F. (2d) 1019, was reversed in 64 F. (2d) 10, alone on the ground of non-infringement, his conclusions on patent validity were not questioned. As evidencing his estimate of the Gaisman patent, his accurate and lucid statement is here quoted:
“The principal utility of the Gaisman invention lies in the fact that it permits less accurate standards of manufacture while maintaining equal accuracy of positioning the cutting edges of the blade with relation to the cap and guard member of the razor. The accumulated error which is possible in the Gaisman razor is less than the accumulated error of the ‘old style’ Gillette razor. It appears from the evidence that the Gaisman principle reduces the variation of the blade cutting edge exposure approximately one-third or, if the same tolerance and clearances are maintained, the Gaisman principle improves the average qualities of the razor by about one-third.
“Plaintiff’s witness T. L. Smith, the production engineer, testified that the greater the tolerance, the lower the cost, and that the greater the precision required, the greater the cost of manufacture. If the tolerances are reduced one-third, the costs would perhaps be doubled (pages 310, 311), and there is no controversion of this testimony in the record. Therefore the effect of the Gaisman invention is either to permit manufacture with less accurate measurements of a razor which will shave satisfactorily or, if the same accuracy is maintained, to produce a more accurate, and therefore a better shaving instrument."
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
BAILEY et al. v. PATTERSON et al.
No. 643.
Decided February 26, 1962.
Constance Baker Motley, Jack Greenberg, James M. Nabrit III and R. Jess Brown for appellants.
Dugas Shands and Edward L. Cates, Assistant Attorneys General of Mississippi, and Charles Clark, Special Assistant Attorney General, for Patterson, Thomas H. Watkins for the City of Jackson, Mississippi, et al., and Junior O’Mara for the Greyhound Corporation et al., appellees.
Per Curiam.
Appellants, Negroes living in Jackson, Mississippi, brought this civil rights action, 28 U. S. C. § 1343 (3), in the United States District Court for the Southern District of Mississippi, on behalf of themselves and others similarly situated, seeking temporary and permanent injunctions to enforce their constitutional rights to nonsegregated service in interstate and intrastate transportation, alleging that such rights had been denied them under color of state statutes, municipal ordinances, and state custom and usage. A three-judge District Court was convened, 28 U. S. C. § 2281, and, Circuit Judge Rives dissenting, abstained from further proceedings pending construction of the challenged laws by the state courts. 199 F. Supp. 595. Plaintiffs have appealed, 28 U. S. C. § 1253; N. A. A. C. P. v. Bennett, 360 U. S. 471. We denied a motion to stay the prosecution of a number of criminal cases pending disposition of this appeal. 368 U. S. 346.
Appellants lack standing to enjoin criminal prosecutions under Mississippi’s breach-of-peace statutes, since they do not allege that they , have been prosecuted or threatened with prosecution under them. They cannot represent a class of whom they are not a part. McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 162-163. But as passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U. S. 80, 93; Evers v. Dwyer, 358 U. S. 202.
We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. Virginia, 328 U. S. 373; Gayle v. Browder, 352 U. S. 903; Boynton v. Virginia, 364 U. S. 454. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U. S. 30; Bell v. Waterfront Comm’n, 279 F. 2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, 136 F. Supp. 181; Bush v. Orleans Parish School Board, 138 F. Supp. 336; Kelley v. Board of Education, 139 F. Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U. S. 948, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U. S. 948. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement — that a single judge ought not to be empowered to invalidate a state statute under a federal claim — does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U. S. 246, 251. The statute comes into play only when an injunction is sought “upon the ground of the unconstitutionality” of a statute. There is no such ground when the constitutional issue presented is essentially fictitious.
This case is therefore not one “required ... to be heard and determined by a district court of three judges,” 28 U. S. C. § 1253, and therefore cannot be brought here on direct appeal. However, we have jurisdiction to determine the authority of the court below and “to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes,” Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U. S. 386, 392; Phillips v. United States, 312 U. S. 246, 254. Accordingly, we vacate the judgment and remand the case to the District Court for expeditious disposition, in light of this opinion, of the appellants’ claims of right to unsegregated transportation service.
Vacated and remanded.
The statutes in question are Miss. Code, 1942, Tit. 11, §§ 2351, 2351.5, 2351.7, and Tit. 28, §§ 7784, 7785, 7786, 7786-01, 7787, 7787.5.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
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sc_authoritydecision
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
GARNER et al. v. BOARD OF PUBLIC WORKS OF LOS ANGELES et al.
No. 453.
Argued April 25, 1951.
Decided June 4, 1951.
Charles J. Katz and Samuel Rosenwein argued the cause for petitioners. With them on the brief was John T. McTernan.
Alan G. Campbell argued the cause for respondents. With him on the brief were Ray L. Chesebro, Bourke Jones and A. L. Lawson.
A. L. Wirin, Fred Okrand, Loren Miller and Clore Warne filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Clark
delivered the opinion of the Court.
In 1941 the California Legislature amended the Charter of the City of Los Angeles to provide in part as follows:
“. . . no person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated or taught, or who may, after this section becomes effective [April 28, 1941], advise, advocate or teach, or who is now or has been within five (5) years prior to the effective date of this section, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period of five (5) years, advised, advocated or taught the overthrow by force or violence of the government of the United States of America or of the State of California.
“In so far as this section may be held by any court of competent jurisdiction not to be self-executing, the City Council is hereby given power and authority to adopt appropriate legislation for the purpose of effectuating the objects hereof.” Cal. Stat. 1941, c. 67.
Pursuant to the authority thus conferred, the City of Los Angeles in 1948 passed Ordinance No. 94,004, requiring every person who held an office or position in the service of the city to take an oath prior to January 6, 1949. In relevant part the oath was as follows:
“I further swear (or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California. I further swear (or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California . . . .”
The ordinance also required every employee to execute an affidavit “stating whether or not he is or ever was a member of the Communist Party of the United States of America or of the Communist Political Association, and if he is or was such a member, stating the dates when he became, and the periods during which he was, such a member . . . .”
On the final date for filing of the oath and affidavit petitioners were civil service employees of the City of Los Angeles. Petitioners Pacifico and Schwartz took the oath but refused to execute the affidavit. The remaining fifteen petitioners refused to do either. All were discharged for such cause, after administrative hearing, as of January 6,1949. In this action they sue for reinstatement and unpaid salaries. The District Court of Appeal denied relief. 98 Cal. App. 2d 493, 220 P. 2d 958 (1950). We granted certiorari, 340 U. S. 941 (1951).
Petitioners attack the ordinance as violative of the provision of Art. I, § 10 of the Federal Constitution that “No State shall . . . pass any Bill of Attainder, [or] ex post facto Law . . . .” They also contend that the ordinance deprives them of freedom of speech and assembly and of the right to petition for redress of grievances.
Petitioners have assumed that the oath and affidavit provisions of the ordinance present similar constitutional considerations and stand or fall together. We think, however, that separate disposition is indicated.
1. The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Communist Party or the Communist Political Association. Not before us is the question whether the city may determine that an employee’s disclosure of such political affiliation justifies his discharge.
We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid.
2. In our view the validity of the oath turns upon the nature of the Charter amendment (1941) and the relation of the ordinance (1948) to this amendment. Immaterial here is any opinion we might have as to the Charter provision insofar as it purported to apply retrospectively for a five-year period prior to its effective date. We assume that under the Federal Constitution the Charter amendment is valid to the extent that it bars from the city’s public service persons who, subsequent to its adoption in 1941, advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. Cf. Gerende v. Board of Supervisors of Elections, 341 U. S. 56 (1951). Likewise, as a regulation of political activity of municipal employees, the amendment was reasonably designed to protect the integrity and competency of the service. This Court has held that Congress may reasonably restrict the political activity of federal civil service employees for such a purpose, United Public Workers v. Mitchell, 330 U. S. 75, 102-103 (1947), and a State is not without power to do as much.
The Charter amendment defined standards of eligibility for employees and specifically denied city employment to those persons who thereafter should not comply with these standards. While the amendment deprived no one of employment with or without trial, yet from its effective date it terminated any privilege to work for the city in the case of persons who thereafter engaged in the activity proscribed.
The ordinance provided for administrative implementation of the provisions of the Charter amendment. The oath imposed by the ordinance proscribed to employees activity which had been denied them in identical terms and with identical sanctions in the Charter provision effective in 1941. The five-year period provided by the oath extended back only to 1943.
The ordinance would be ex post facto if it imposed punishment for past conduct lawful at the time it was engaged in. Passing for the moment the question whether separation of petitioners from their employment must be considered as punishment, the ordinance clearly is not ex post facto. The activity covered by the oath had been proscribed by the Charter in the same terms, for the same purpose, and to the same effect over seven years before, and two years prior to the period embraced in the oath. Not the law but the fact was posterior.
Bills of attainder are “legislative acts . . . that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial . . . .” United States v. Lovett, 328 U. S. 303, 315 (1946). Punishment is a prerequisite. See concurring opinion in Lovett, supra, at 318, 324. Whether legislative action curtailing a privilege previously enjoyed amounts to punishment depends upon “the circumstances attending and the causes of the deprivation.” Cummings v. Missouri, 4 Wall. 277, 320 (1867). We are unable to conclude that punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment.
Cummings v. Missouri, 4 Wall. 277 (1867), and Ex parte Garland, 4 Wall. 333 (1867), the leading cases in this Court applying the federal constitutional prohibitions against bills of attainder, recognized that the guarantees against such legislation were not intended to preclude legislative definition of standards of qualification for public or professional employment. Carefully distinguishing an instance of legislative “infliction of punishment” from the exercise of “the power of Congress to prescribe qualifications,” the Court said in Garland’s case: “The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life.” 4 Wall, at 379-380. See also, Cummings v. Missouri, supra, at 318-319. This doctrine was reaffirmed in Dent v. West Virginia, 129 U. S. 114 (1889), in which Mr. Justice Field, who had written the Cummings and Garland opinions, wrote for a unanimous Court upholding a statute elevating standards of qualification to practice medicine. And in Hawker v. New York, 170 U. S. 189 (1898), the Court upheld a statute forbidding the practice of medicine by any person who had been convicted of a felony. Both Dent and Hawker distinguished the Cummings and Garland cases as inapplicable when the legislature establishes reasonable qualifications for a vocational pursuit with the necessary effect of disqualifying some persons presently engaged in it.
Petitioners rely heavily upon United States v. Lovett, 328 U. S. 303 (1946), in which a legislative act effectively separating certain public servants from their positions was held to be a bill of attainder. Unlike the provisions of the Charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensation to named individual employees. Under these circumstances, viewed against the legislative background, the statute was held to have imposed penalties without judicial trial.
Nor are we impressed by the contention that the oath denies due process because its negation is not limited to affiliations with organizations known to the employee to be in the proscribed class. We have no reason to suppose that the oath is or will be construed by the City of Los Angeles or by California courts as affecting adversely those persons who during their affiliation with a proscribed organization were innocent of its purpose, or those who severed their relations with any such organization when its character became apparent, or those who were affiliated with organizations which at one time or another during the period covered by the ordinance were engaged in proscribed activity but not at the time of affiant’s affiliation. We assume that scienter is implicit in each clause of the oath. As the city has done nothing to negative this interpretation, we take for granted that the ordinance will be so read to avoid raising difficult constitutional problems which any other application would present. Fox v. Washington, 236 U. S. 273, 277 (1915). It appears from correspondence of record between the city and petitioners that although the city welcomed inquiry as to its construction of the oath, the interpretation upon which we have proceeded may not have been explicitly called to the attention of petitioners before their refusal. We assume that, if our interpretation of the oath is correct, the City of Los Angeles will give those petitioners who heretofore refused to take the oath an opportunity to take it as interpreted and resume their employment.
The judgment as to Pacifico and Schwartz is affirmed. The judgment as to the remaining petitioners is affirmed on the basis of the interpretation of the ordinance which we have felt justified in assuming.
Affirmed.
In interpreting local legislation proscribing affiliation with defective organizations, the Supreme Court of California has gone beyond the literal text of a statute so as to require knowledge of the character of the organization, as of the time of affiliation, by the person whose affiliation is in question. In People v. Steelik, 187 Cal. 361, 203 P. 78 (1921), the Court upheld a conviction under the Criminal Syndicalism Act of 1919 which made one guilty of a felony who “is” a member of any one of a certain class of proscribed organizations. The indictment in relevant part alleged that defendants “are and each of them is” a member of a proscribed organization. The court interpreted the statute as defining and the indictment as charging “the offense of criminal syndicalism in that he knowingly belonged” to a proscribed organization. (Emphasis added.) 187 Cal. at 376, 203 P. at 84.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_petitioner
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SWISHER, STATE’S ATTORNEY FOR BALTIMORE CITY, et al. v. BRADY et al.
No. 77-653.
Argued March 29, 1978
Decided June 28, 1978
Bueger, C. J., delivered the opinion of the Court, in which Stewart, White, BlacicmuN, Rehnquist, and SteveNs, JJ., joined. Marshall, J., filed a dissenting opinion, in which BreNNan and Powell, JJ., joined, post, p. 219.
George A. Nilson, Deputy Attorney General of Maryland, argued the cause for appellants. With him on the brief were Francis B. Burch, Attorney General, and Clarence W. Sharp and Alexander L. Cummings, Assistant Attorneys General.
Peter S. Smith, by appointment of the Court, 434 IT. S. 1007, argued the cause for appellees. With him on the brief were Adrienne E. Volenik, Phillip G. Dantes, and Bruce A. Gilmore
David C. Howard filed a brief for the National Juvenile Law Center as amicus curiae urging affirmance.
Paul Halvonik, pro se, and Laurance S. Smith filed a brief for the State Public Defender of California as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
This is an appeal from a three-judge District Court for the District of Maryland. Nine minors, appellees here,.brought an action under 42 U. S. C. § 1983, seeking a declaratory judgment and injunctive relief to prevent the State from filing exceptions with the Juvenile Court to proposed findings and recommendations made by masters of that court. The minors’ claim was based on an alleged violation of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The District Court’s jurisdiction was invoked under 28 U. S. C. §§ 1343, 2281, and 2284 (as then written); this Court’s jurisdiction, under 28 U. S. C. § 1253.
I
In order to understand the present Maryland scheme for the use of masters in juvenile court proceedings, it is necessary to trace briefly the history both of antecedent schemes and of this and related litigation.
Prior to July 1975, the use of masters in Maryland juvenile proceedings was governed by Rule 908 (e), Maryland Rules of Procedure. It provided that a master “shall hear such cases as may be assigned to him by the court.” The Rule further directed that, at the conclusion of the hearing, the master transmit the case file and his “findings and recommendations” to the Juvenile Court. If no party filed exceptions to these findings and recommendations, they were to be “promptly... confirmed, modified or remanded by the judge.” If, however, a party filed exceptions — and in delinquency hearings, only the State had the authority to do so — then, after notice, the Juvenile Court judge would “hear the entire matter or such specific matters as set forth in the exceptions de novo.”
In the city of Baltimore, after the State filed a petition alleging that a minor had committed a delinquent act, the clerk of the Juvenile Court generally would assign the case to one of seven masters. In the ensuing unrecorded hearing, the State would call its witnesses and present its evidence in accordance with the rules of evidence applicable in criminal cases. The minor could offer evidence in defense. At the conclusion of the presentation of evidence, the master usually would announce his findings and contemplated recommendations. In a minority of those cases where the recommendations favored the minor’s position, the State would file exceptions, whereupon the Juvenile Court judge would try the case de novo.
In 1972, a Baltimore City Master concluded, after a hearing, that the State had failed to show beyond a reasonable doubt that a minor, William Anderson, had assaulted and robbed a woman. His recommendation to the Juvenile Court judge reflected that conclusion. The State filed exceptions. Anderson responded with a motion to dismiss the notice of exceptions, contending that Rule 908 (e), with its provision for a de novo hearing, violated the Double Jeopardy Clause. The Juvenile Court judge ruled that juvenile proceedings as such were not outside the scope of the Double Jeopardy Clause. He then held that the proceeding before him on the State’s exceptions would violate Anderson’s right not to be twice put in jeopardy and, on that basis, granted the motion to dismiss. The judge granted the same relief to similarly situated minors, including several who later initiated the present litigation.
The State appealed and the Court of Special Appeals reversed. In re Anderson, 20 Md. App. 31, 315 A. 2d 540 (1974). That court assumed, for purposes of its decision, that jeopardy attached at the commencement of the initial hearing before the master. It held, however:
“ [T]here is no adjudication by reason of the master’s findings and recommendations. The proceedings before the master and his findings and recommendations are simply the first phase of the hearing which continues with the consideration by the juvenile judge. Whether the juvenile judge, in the absence of exceptions, accepts the master’s findings or recommendatipns, modifies them or remands them, or whether, when exceptions are filed, he hears the matter himself de novo, there is merely a continuance of the hearing and the initial jeopardy. In other words, the hearing, and the jeopardy thereto attaching, terminate only upon a valid adjudication by the juvenile judge, not upon the findings and recommendations of the master.” Id., at 47, 315 A. 2d, at 549 (footnotes omitted; emphasis added).
On this basis, the court concluded that the de novo hearing was not a second exposure to jeopardy.
On appeal by the minors, the Court of Appeals affirmed, although on a rationale different from that of the intermediate appellate court. In re Anderson, 272 Md. 85, 321 A. 2d 516 (1974). It held that “a hearing before a master is not such a hearing as places a juvenile in jeopardy.” Central to this holding was the court’s conclusion that masters in Maryland serve only as ministerial assistants to judges; although authorized to hear evidence, report findings, and make recommendations to the judge, masters are entrusted with none of the judicial power of the State, including the sine qua non of judicial office — the power to enter a binding judgment.
In November 1974, five months after the Court of Appeals’ decision, nine juveniles sought federal habeas corpus relief, contending that by taking exceptions to masters’ recommendations favorable to them the State was violating their rights under the Double Jeopardy Clause. These same nine minors also initiated a class action under 42 U. S. C. § 1983 in which they sought a declaratory judgment and injunctive relief against the future operation of Rule 908 (e). The sole constitutional basis for their complaint was, again, the Double Jeopardy Clause. A three-judge court was convened to hear this matter, and it is the judgment of that court we now review.
Before either the three-judge District Court or the single judge reviewing the habeas corpus petitions could act, the-Maryland Legislature.,enacted legislation which, for the first time, provided a statutory basis for the use of masters in juvenile court proceedings. In doing so, it modified slightly the scheme previously operative under Rule 908 (e). The new legislation required that hearings before a master be recorded and that, at their conclusion, the master submit to the Juvenile Court judge written findings of fact, conclusions of law, and recommendations. Either party was authorized to file exceptions and could elect a hearing on the record or a de novo hearing before the judge. The legislature specified that the master’s “proposals and recommendations... for juvenile causes do not constitute orders or final action of the court.” Accordingly, the judge could, even in the absence of exceptions, reject a'master’s recommendations and conduct a de novo hearing or, if the parties agreed, a hearing on the record. Md. Cts. & Jud. Proc. Code Ann. § 3-813 (Supp. 1977).
In June 1975, within two months of the enactment of § 3-813 and before its July 1, 1975, effective date, the single-judge United States District Court held that the Rule 908 (e) provision for a de novo hearing on the State’s exceptions violated the Double Jeopardy Clause. Aldridge v. Dean, 395 F. Supp. 1161 (Md. 1975). In that court’s view, a juvenile was placed in jeopardy as soon as the State offered evidence in the hearing before a master. The court also concluded that to subject a juvenile to a de novo hearing before the Juvenile Court judge was to place him in jeopardy a second time. Accordingly, it granted habeas corpus relief to the six petitioners already subjected by the State to a de novo hearing. The petitions of the remaining three, who had not yet been brought before the Juvenile Court judge, were dismissed without prejudice as being premature.
In response to both the enactment of § 3-813 and the decision in Aldridge v. Dean, supra, the Maryland Court of Appeals, in the exercise of its rulemaking power, promulgated a new rule, and the one currently in force, Rule 911, to govern the use of masters in juvenile proceedings. Rule 911 differs from the statute in significant aspects. First, in order to emphasize the nonfinal nature of a master’s conclusions, it stresses that all of his “findings, conclusions, recommendations or... orders” are only proposed. Second, the State no longer has power to secure a de novo hearing before the Juvenile Court judge after unfavorable proposals by the master. The State still may file exceptions, but the judge can act on them only on the basis of the record made before the master and “such additional [relevant] evidence... to which the parties raise no objection.” The judge retains his power to accept, reject, or modify the master’s proposals, to remand to the master for further hearings, and to supplement the record for his own review with additional evidence to which the parties do not object
Thus, Rule 911 is a direct product of the desire of the State to continue using masters to meet the heavy burden of juvenile court caseloads while at the same time assuring that their use not violate the constitutional guarantee against double jeopardy. To this end, the Rule permits the presentation and recording of evidence in the absence of the only officer authorized by the state constitution, see In re Anderson, 272 Md., at 104-105, 321 A. 2d, at 526-527, and by statute, § 3-813, to serve as the factfinder and judge.
After the effective date of Rule 911, July 1, 1975, the plaintiffs in the § 1983 action amended their complaint to bring Rule 911 within its scope. They continued to challenge the state procedure, however, only on the basis of the Double Jeopardy Clause. Other juveniles intervened as the ongoing work of the juvenile court brought them within the definition of the proposed class. Their complaints in intervention likewise rested only on the Double Jeopardy Clause.
The three-judge District Court certified the proposed class under Fed. Rule Civ. Proc. 23 (b) (2) to consist of all juveniles involved in proceedings where the State had filed exceptions to a master’s proposed findings of nondelinquency. That court then held that a juvenile subjected to a hearing before a master is placed in jeopardy, even though the master has no power to enter a final order. It also held that the Juvenile Court judge’s review of the record constitutes a “second proceeding at which [the juvenile] must once again marshal whatever resources he can against the State’s and at which the State is given a second opportunity to obtain a conviction.” 436 F. Supp. 1361, 1369 (Md. 1977). Accordingly, the three-judge District Court enjoined the defendant state officials from taking exceptions to either a master’s proposed finding of nondelinquency or his proposed disposition.
We noted probable jurisdiction solely to determine whether the Double Jeopardy Clause prohibits state officials, acting in accordance with Rule 911, from taking exceptions to a master’s proposed findings. 434 U. S. 963 (1977).
II
The general principles governing this case are well established.
“A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U. S. 784. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though The acquittal was based upon an egregiously erroneous foundation.’... If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.
“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s Valued right to have his trial completed by a particular tribunal.’... Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U. S. 497, 503-505 (1978) (footnotes omitted).
In the application of these general principles, the narrow question here is whether the State in filing exceptions to a master’s proposals, pursuant to Rule 911, thereby “require [s] an accused to stand trial” a second time. We hold that it does not. Maryland has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master’s hearing and culminates with an adjudication by a judge.
Importantly, a Rule 911 proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose “of the prohibition against successive trials” is to bar “the prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 17. S. 1, 11 (1978). A Rule 911 proceeding does not provide the prosecution that forbidden “second crack.” The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor.
The Double Jeopardy Clause also precludes the prosecutor from “enhanc[ing] the risk that an innocent defendant may be convicted,” Arizona v. Washington, supra, at 504, by taking the question of guilt to a series of persons or groups empowered to make binding determinations. Appellees contend that in its operation Rule 911 gives the State the chance to persuade two such factfinders: first the master, then the Juvenile Court judge. In support of this contention they point to evidence that juveniles and their parents sometimes consider the master “the judge” and his recommendations “the verdict.” Within the limits of jury trial rights, see McKeiver v. Pennsylvania, 403 U. S. 528 (1971), and other constitutional constraints, it is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here Maryland has conferred those roles only on the Juvenile Court judge. Thus, regardless of which party is initially favored by the master’s proposals, and regardless of the presence or absence of exceptions, the judge is empowered to accept, modify, or reject those proposals.
Finally, there is nothing in the record to indicate that the procedure authorized under Rule 911 unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U. S. 184 (1957). Indeed, there is nothing to indicate that the juvenile is even brought before the judge while he conducts the “hearing on the record,” or that the juvenile’s attorney appears at the “hearing” and presents oral argument or written briefs. But even if there were such participation or appearance, the burdens are more akin to those resulting from a judge’s permissible request for post-trial briefing or argument following a bench trial than to the “expense” of a full-blown second trial contemplated by the Court in Green.
In their effort to characterize a Rule 911 proceeding as two trials for double jeopardy purposes, appellees rely on two decisions of this Court, Breed v. Jones, 421 U. S. 519 (1975), and United States v. Jenkins, 420 U. S. 358 (1975).
In Breed, we held that a juvenile was placed twice in jeopardy when, after an adjudicatory hearing in Juvenile Court on a charge of delinquent conduct, he was transferred to adult criminal court, tried, and convicted for the same conduct. All parties conceded that jeopardy attached at the second proceeding in criminal court. The State contended, however, that jeopardy did not attach in the Juvenile Court proceeding, although that proceeding could have culminated in a deprivation of the juvenile’s liberty. We rejected this contention and also the contention that somehow jeopardy “continued” from the first to the second trial. Breed is therefore inapplicable to the Maryland scheme, where juveniles are subjected to only one proceeding, or “trial.”
Appellees also stress this language from Jenkins:
“[I]t is enough for purposes of the Double Jeopardy Clause... that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings.... [To do so] would violate the Double Jeopardy Clause.” 420 TJ. S., at 370 (emphasis added).
Although we doubt that the Court’s decision in a case can be correctly identified by reference to three isolated sentences, any language in Jenkins must now be read in light of our subsequent decision in United States v. Scott, 437 U. S. 82 (1978). In Scott we held that it is not all proceedings requiring the making of supplemental findings that are barred by the Double Jeopardy Clause, but only those that follow a previous trial ending in an acquittal; in a conviction either not reversed on appeal or reversed because of insufficient evidence, see Burks v. United States, supra; or in a mistrial ruling not prompted by “manifest necessity,” see Arizona v. Washington, 434 U. S. 497 (1978). A Juvenile Court judge’s decision terminating a Rule 911 proceeding follows none of those occurrences. Furthermore, Jenkins involved appellate review of the final judgment of a trial court fully empowered to enter that judgment. Nothing comparable occurs in a Rule 911 proceeding. See n. 15, supra.
To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911 — either sua sponte, in response to the State’s exceptions, or in response to the juvenile’s exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection — he does so without violating the constraints of the Double Jeopardy Clause.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
It is so ordered.
Rule 908 (e) was the sole authority for the use of masters in juvenile causes. The practice was not treated in Maryland statutes.
Maryland, like 39 other States, defines a delinquent act as one that, if committed by an adult, would violate a criminal statute. See statutes collected at McCarthy, Delinquency Dispositions Under the Juvenile Justice Standards: The Consequences of a Change of Rationale, 52 N. Y. U. L. Rev. 1093 n. 2 (1977).
The official name of the court is Circuit Court of Baltimore City, Division for Juvenile Causes.
In 1974, of 5,345 delinquency hearings conducted in the Juvenile Court, 5,098 were held before masters. The remaining 247 were assigned in the first instance to the judge.
In 1974, the Juvenile Court judge conducted 80 de novo, or “exceptions,” hearings in delinquency matters. All hearings before the judge were recorded.
When the minors appealed here from this decision, we dismissed for want of a substantial federal question, Epps v. Maryland, 419 U. S. 809 (1974), and also denied certiorari, Anderson v. Maryland, 421 U. S. 1000 (1975).
At the time of its promulgation, the new Rule was numbered 910. As a result of recent nonsubstantive amendments and recodification, it received the 911 designation, by which it is referred to throughout this opinion.
The juvenile, after filing exceptions, can still elect either a de novo hearing or a hearing on the record.
Rule 911, in its entirety, provides:
“a. Authority.
“1. Detention or Shelter Care.
“A master is authorized to order detention or shelter care in accordance with Rule 912 (Detention or Shelter Care) subject to an immediate review by a judge if requested by any party.
“2. Other Matters.
“A master is authorized to hear any cases and matters assigned to him by the court, except a hearing on a waiver petition. The findings, conclusions and recommendations of a master do not constitute orders or final action of the court.
“b. Report to the Court.
“Within ten days following the conclusion of a disposition hearing by a master, he shall transmit to the judge the entire file in the ease, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition. A copy of his report and proposed order shall be served upon each party as provided by Rule 306 (Service of Pleadings and Other Papers).
“c. Review by Court if Exceptions Filed.
“Any party may file exceptions to the master’s proposed findings, conclusions, recommendations or proposed orders. Exceptions shall be in writing, filed with the clerk within five days after the master’s report is served upon the party, and shall specify those items to which the party excepts, and whether the hearing is to be de novo or on the record. A copy shall be served upon all other parties pursuant to Rule 306 (Service of Pleadings and Other Papers).
“Upon the filing of exceptions, a prompt hearing shall be scheduled on the exceptions. An excepting party other than the State may elect a hearing de novo or a hearing oil the record. If the State is the excepting party, the hearing shall be on the record, supplemented by such additional evidence as the judge considers relevant and to which the parties raise no objection. In either case the hearing shall be limited to those matters to which exceptions have been taken.
“d. Review by Court in Absence of Exceptions.
“In the absence of timely and proper exceptions, the master's proposed findings of fact, conclusions of law and recommendations may be adopted by the court and the proposed or other appropriate orders may be entered based on them. The court may remand the case to the master for further hearings, or may, on its own motion, schedule and conduct a further hearing supplemented by such additional evidence as the court considers relevant and to which the parties raise no objection. Action by the court under this section shall be taken within two days after the expiration of the time for filing exceptions.”
Defendants, appellants here, are
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_genapel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
IOWA CITY, IOWA, et al. v. IOWA CITY LIGHT & POWER CO.
No. 10852.
Circuit Court of Appeals, Eighth Circuit
June 28, 1937.
D. C. Nolan, of Iowa City, Iowa, for appellants.
C. D. Waterman and Wayne G. Cook, both of Davenport, Iowa (Dan C. Dutcher and Dutcher, Ries & Dutcher, all of Iowa City, Iowa, and Lane & Waterman, of Davenport, Iowa, on the brief), for appellee.
Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges.
Rehearing denied Sept. 27, 1937.
WOODROUGH, Circuit Judge.
This suit in equity was brought by the Iowa City Light & Power Company against the city of Iowa City, its mayor and solicitor and members of the city council, to enjoin the defendants from enforcing a gas rate ordinance passed by the city council April 19, 1935, and from interfering with or obstructing the plaintiff in the distribution of natural gas to the city and its inhabitants.
The plaintiff is the successor in interest to the Iowa City Gas Light Company which was granted a 25 year gas franchise by the city in 1909. The franchise expired in 1934, but there are no other means to supply gas to the city and its inhabitants, and the light and power company continues to operate as the only gas utility in the city and performs such gas utility service according to the terms of the franchise without objection from anyone. It alleged in its bill of complaint (among other things) that the gas rate ordinance of April 19, 1935, was confiscatory, void, and unenforceable, and the master to whom the case was referred so found and reported upon consideration of the evidence, and the court affirmed the report and enjoined the rates. From that part of the decree no appeal has been taken.
But it was also alleged in the bill of complaint that the light and power company had the right and had been directed by resolution of the city council, passed November 16, 1934, to serve natural gas instead of manufactured gas to its customers. That the franchise of 1909 did not, by its terms, prescribe or limit or define the character of the gas to be furnished to the city and the plaintiff has furnished different kinds of gas under its franchise, including water gas, coal gas and carbureted watér gas. That it had elected to comply with the direction of the city council to serve natural gas and had incurred the expense necessary to bring the natural gas from the pipe line where it was available into the city, but that the defendants, in passing the gas rate ordinance of April 19, 1935, which fixed rates for manufactured gas only, expressed their intention to interfere with the right of the plaintiff to serve natural gas to the city and its inhabitants and have refused to permit the introduction of the natural gas and have forbidden the plaintiff the privilege of installing it.
The trial court found that the company had the right to serve natural gas and enjoined the defendants from in any way interfering with the plaintiff in serving natural gas in place of manufactured gas to the inhabitants of Iowa City. At the time the suit was brought and the injunction was entered the defendants were refusing to grant permits to the plaintiff to make necessary street excavations to connect up the natural gas line with the existing distribution system at the gas works. The decree, therefore, included mandatory provisions to permit the necessary excavations to be made. Such mandatory provisions of the decree were not stayed pending this appeal and it is stated at the bar that all necessary excavations have been made by the company and the connection has been completed so that now only the adjustment of customers’ equipment and substitution of gas in the mains remains to be done in order to effect the change in the service from manufactured to natural gas.
The appellants, seeking to reverse that part of the decree which enjoins defendants from preventing the service of natural gas, have contended, (1) that the suit was not cognizable in equity, (2) that the gas franchise of 1909 did not grant the right to use the city streets to supply natural gas either expressly or by implication, (3) that there was no power in the city to compel natural gas to be supplied and so there was no mutuality of obligation and the company must fail, (4) that even if the franchise authorized serving natural gas the company should not be permitted to extend its facilities in order to supply natural gas since the term of the franchise had expired, (5) the discretionary power of the city to withhold street excavation permits should not be controlled by the court, and, (6) to install natural gas would impose a burden and damage to gas consumers.
(1). Equity: We find no merit in the contention that the trial court was without jurisdiction in equity. The federal jurisdiction was established by the diversity of citizenship and more than $3,000 involved, as well as by the allegations that determination of the controversy involved construction of the Fifth and Fourteenth Amendments to the Federal Constitution and section 10 of article 1 thereof. In part the object of the suit was to enjoin the enforcement of rates to he charged by the utility for gas and the power of the federal equity courts to entertain bills in equity for that purpose and to grant such relief in proper cases has been too long established to require citations. 1 Hughes, Fed. Practice, 433, § 567. As the suit was properly brought in equity to enjoin the enforcement of the confiscatory rates it was the duty of the equity court to retain and exercise is jurisdiction to adjudicate all the issues presented. Alexander v. Hillman, 296 U.S. 222, 242, 56 S.Ct. 204, 80 L.Ed. 192; Hartford Accident & Indem. Co. v. Southern Pacific Co., 273 U.S. 207, 217, 47 S.Ct. 357, 71 L.Ed. 612; United States v. Union Pac. Ry. and Western Union Tel. Co., 160 U.S. 1, 51, 16 S.Ct. 190, 40 L.Ed. 319; Gabrielson v. Hogan (C.C.A.8) 298 F. 722, 726.
(2). The franchise: There is no limitation or definition contained in the charter of 1909 concerning the character of gas which tile city authorized the Iowa City Gas Light Company to supply. The language of the grant was:
“An Ordinance Granting the Iowa City Gas Light Company, Its Successors or Assigns Permission To Use the Streets, Alleys and Public Grounds of Iowa City For the Purpose of Laying Down Pipes For Conveying Gas For the Supplying of Said City and the Inhabitants Thereof With Gas.
“Be It Ordained by the City Council of Iowa City, Iowa:
“Section 870. That the Iowa City Gas Light Company, its successors or assigns be and are hereby authorized and the privilege is hereby granted the said Iowa City Gas Light Company, its successors or assigns for the term of tvrenty-five years, subject to the conditions herein expressed, to use the streets, alleys and public grounds of Iowa City, including any territory that may hereafter be annexed to said Iowa City, for the purpose oí laying down pipes for conveying gas for the supplying said city and the inhabitants thereof with gas.”
There was a forfeiture clause: “Provided further, if in the future the said Iowa City Gas Light Company, its successors or assigns ceases in good faith to manufacture gas and to use the franchise herein granted for the period of ninety days then said Iowa City may annul and cancel all rights herein granted by giving ninety days’ notice in writing to said Iowa" City Gas Light Company, its successors or assigns, of its intention so to do.”
The name of the grantee of the franchise, “Iowa City Gas Light Company,” is reminiscent of an important use of gas .in former times. Possibly gas best adapted to lighting purposes would then be uppermost in the mind of those voting a gas franchise. But we see no reason to read a restricting limitation on the kind of gas to be furnished under the • franchise. Of course, the gas must be suitable for and adapted to the uses for which it is intended. So much is implied in the franchise, but no more. The franchise was not conditioned that it might be forfeited if the grantee ceased to manufacture gas but, so far as forfeiture was provided for in the charter, the right was given to the city only if- the grantee ceases to manufacture gas and use the franchise (that is, “if it ceases to use the city streets for * * * conveying gas for supplying said city * * * with gas”). No condition of the franchise, either expressly or by implication, excluded natural gas. City of Laurel v. Mississippi Gas Co. (C.C.A.5) 49 F.(2d) 219; Central Power Co. v. City of Hastings (D.C.) 52 F.(2d) 487.
(3). Mutuality: The franchise contemplated that the grantee and its assigns and successors should have the responsibility of supplying gas and regulatory powers remained with the city, and to that extent there were mutual and reciprocal obligations. But as there was no specification in the franchise of any particular kind, quality, or character of gas which the city could require the company to furnish, the city cannot prevent the company from supplying a gas which is suitable for the uses for which it is intended and required. We do not consider Union Light, Heat & Power Co. v. Young, 146 Ky. 430, 142 S.W. 692, relied on by appellants, to be applicable.
(4). The expiration of the franchise: It is well settled that a public service utility operating under a city franchise is not released from its duty to render service at the moment its franchise runs out. Where the city inhabitants have become dependent upon the service and no other arrangements have been made to supply it, the obligation to serve remains on the utility whose properties still occupy the streets and public places. Neither is the city absolved from its duties by the termination of the franchise. The reciprocal duties which result from necessity when the term of the franchise expires are no less certain because the conditions are of indefinite duration. While they continue, the utility must keep the service up and the city must require the rates to be reasonable. It follows that the utility must continue to use its best effort to render its service efficiently and economically, and a reasonable choice of means remains with the company. If in order to accomplish that end it is necessary for it to lay more pipe-in streets in which it has not yet laid them, the temporary nature of its tenure in nowise relieves it of its duty, nor deprives it of its right, to keep up with the requirements of its service. The rights of the utility company in the streets are not exactly the same as such rights were prior to the termination of the franchise. The right of occupancy of the street, whether by sufferance or at will, under the circumstances disclosed, arose by implication and was terminable by reasonable notice. But the fact that the charter has expired, would, of itself, afford the city, no justification to prevent the utility from installing natural gas where such installation was within the purview of the charter under which the utility service was developed and carried on. City and County of Denver v. Denver Union Water Co., 246 U.S. 178, 190, 38 S.Ct. 278, 62 L.Ed. 649; City of Roswell v. Mountain States Tel. & Tel. (C.C.A.10) 78 F.(2d) 379, 386; Hill v. Elizabeth City (C.C.A.4) 298 F. 67; State ex rel. County Attorney v. Des Moines City Ry., 159 Iowa, 259, 140 N.W. 437; Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081, 1090.
(5). Street excavations: The city has reserved to it at all times a reasonable discretion in the matter of granting or withholding permits to excavate for laying gas pipes in the streets. The evidence clearly disclosed that before the mandatory injunction was issued herein excavation permits were being refused the gas and light company because the city officers were denying the right of the company to supply natural gas and the appellants continue to justify the refusal of permits on that ground. As it appears that the necessary excavations to complete the installations desired by the company have now been made, it is deemed unnecessary to elaborate upon the contentions under this heading. As we are in accord with the trial court’s conclusion that natural gas may lawfully be installed by the company, it is not to he anticipated that excavations necessitated by that service will be unreasonably refused by the city.
(6). Would natural gas cause damage and burden? The plaintiff alleged in its bill of complaint that the natural gas which it proposes to distribute is a material improvement over the gas heretofore furnished, of higher thermal content, and capable of being furnished at substantially less cost to the consumer. That there is a constant increase in prices incident to the manufacture of gas and that, if the rate for manufactured gas were substantially increased, sales would tend to decrease and that the use of manufactured gas is no longer economically sound and that competitive conditions in the industry can be met only by the utilization of natural gas. The defendants put these claims in issue and alleged that natural gas is inferior in many respects and particularly that it is more hazardous; it is dirtier; contains many foreign elements that are not found in manufactured gas; that it does not have, nor can an even pressure be maintained; that the thermal or B.T.U. content thereof, although it may be of a higher quantity, is not capable or susceptible of being efficiently used or as high efficiency obtained from natural gas in respect to its higher B.T.R. or thermal content as can be obtained from manufactured or artificial gas. They also alleged that the cost to the company of installing natural gas will increase the capital investment so as to impose an unreasonable burden on the consumers.
The master analyzed the considerable volume of testimony upon the fact issues so presented and found that the natural gas proposed to be furnished by the utility is more practicable in that it is cheaper and approximately as efficient as manufactured gas. The trial court, on consideration of the master’s report and the exceptions thereto, overruled the exceptions and approved and confirmed the report. Our study of the testimony has led to the conclusion that the findings are in accord with the preponderance and that the trial court did not err in sustaining them.
Each of the assignments of error has been considered, but none is sustained.
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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