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songer_direct2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
William A. SCHMITT, as Trustee in Bankruptcy of Gold Medal Packing Corporation, Petitioner-Appellant, v. B. Alton BLACKWELDER, Commissioner of Finance of Oneida County, N. Y., et al., Respondents-Appellees.
No. 452, Docket 31202.
United States Court of Appeals Second Circuit.
Argued May 8, 1967.
Decided June 7, 1967.
Laurence Sovik, Syracuse, N. Y. (Smith, Sovik, Terry, Kendrick, McAu-liffe & Schwarzer, Syracuse, N. Y., and Hubbard, Felt & Fuller, Utica, N. Y., on the brief), for appellant.
Robert E. Remmell, Utica, N. Y. (Richard A. Frye, County Atty. for Oneida County, New York), for appellee B. Alton Blackwelder.
Charles Seligson, New York City (Harvey R. Miller, J. Robert Seder and Selig-son & Morris, New York City, and Shaw J. Dallal, Utica, N. Y., on the brief), for other appellees.
Shaw J. Dalall, Utica, N. Y., foi respondents-appellees Chicago Dressed Beef Co., Inc., Western Pork Packers, Inc., and National Packing Co., Inc.
Before SMITH, KAUFMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge.
William A. Schmitt, trustee in bankruptcy of Gold Medal Packing Corporation, appeals from an order of the United States District Court for the Northern District of New York vacating an order of the referee in bankruptcy which directed that the defendant Commissioner of Finance of Oneida County turn over to the bankruptcy court proceeds of a condemnation award on property formerly owned by the bankrupt. We affirm the district court’s order.
Gold Medal Packing Corporation was the owner of certain improved real property, located in Utica, New York. There were a real property mortgage and a chattel mortgage on the property securing a promissory note for $362,500 held by James S. Scala and Rose Scala. Early in 1963 Gold Medal defaulted in paying the Scala indebtedness and on March 1, 1963 the Scalas commenced a foreclosure proceeding in the Supreme Court of the State of New York, Oneida County. On April 29, 1963, the Scalas conveyed all their right, title and interest in the mortgages and in the foreclosure proceedings to defendant Chicago Dressed Beef Co., Inc. At the time of this transfer the outstanding mortgage debt was $181,330.36.
A receiver was appointed on June 12, 1963, to preserve the mortgaged property “for the benefit of plaintiffs’ assignee [Chicago Dressed Beef Company].” Shortly thereafter, acting pursuant to his authority to “take full possession of the said premises, with full power to see to necessary repairs, and maintenance to the said premises and the fixtures and machinery located therein,” the receiver took custody of the property and entered upon the performance of his duties.
On August 15, 1963, approximately five and a half months after the commencement of the foreclosure action and two months after the appointment of the receiver, an involuntary petition in bankruptcy was filed against Gold Medal in the district court. The bankrupt was not served with a subpoena as required by the Bankruptcy Act.
Over a year passed without further action being taken. On December 31, 1964, the City of Utica commenced condemnation proceedings against the property in the state supreme court, Oneida County. In January, 1965 a judgment of condemnation was entered, with respect to the real property, and in February the City took actual physical possession of the real property from the court appointed receiver. On August 11, 1966 the state supreme court confirmed a condemnation award of $542,434 plus interest and ordered the payment of that sum to the Commissioner of Finance of Oneida County subject to further order of the court.
About two weeks after the confirmation of the condemnation award the long dormant bankruptcy proceeding was revived and proper service on the debtor was effected. Appellant Schmitt became trustee on December 29, 1966. He immediately sought an order in the state supreme court permitting him to intervene as a party defendant in the condemnation proceeding and directing the ap-pellee Commissioner of Finance to turn over to him the condemnation proceeds. Before the state court had rendered its decision, the trustee filed a petition in the bankruptcy proceeding seeking similar relief.
On February 6, 1967 the state court granted the trustee’s petition to intervene and to be substituted as a party defendant in the condemnation proceeding but denied his petition for a turn over order. However, on February 24th the referee issued an order directing the Commissioner of Finance to turn over to the trustee the $542,434 awarded for the condemned property. The district court vacated the referee’s order. It is from this action that the present appeal is taken.
We reject the trustee’s contention that the bankruptcy court has exclusive summary jurisdiction to adjudicate the validity and extent of liens and encumbrances asserted against the condemned property. The Supreme Court has held that the bankruptcy court’s summary jurisdiction extends to all property in the bankrupt’s possession at the time of the filing of the petition:
“Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876 (1940) (footnote omitted); see Cline v. Kaplan, 323 U.S. 97, 65 S.Ct. 155, 89 L.Ed. 97 (1944); 2 Collier, Bankruptcy, ¶ 23.04[2] (14th ed. 1966).
The trustee’s contention that Gold Medal had possession of the mortgaged property at the time of the filing of the petition in bankruptcy is without merit. The applicable law has been clearly stated by the Court of Appeals of the Ninth Circuit in Smith v. Hill, 317 F.2d 539, 542 (9th Cir. 1963):
“When, prior to bankruptcy, a state court receiver takes possession of property of a debtor as an incident to enforcement of a mortgage lien which antedated bankruptcy by more than four months and the validity of which is not otherwise challenged, the foreclosure proceedings are not superseded by bankruptcy.” (Citing, inter alia, Emil v. Hanley, 318 U.S. 515, 519-520, 63 S.Ct. 687, 87 L.Ed. 954 (1943), and Straton v. New, 283 U.S. 318, 326 & n. 6, 51 S.Ct. 465, 75 L.Ed. 1060 (1931).)
We have held that the commencement of a foreclosure proceeding in a state court vests that court with constructive possession of the mortgaged property, depriving the bankruptcy court of summary jurisdiction, whether or not the validity of the mortgage is challenged. See In re Greenlie-Halliday Co., 57 F.2d 173 (2d Cir. 1932); see generally, 1 Collier, Bankruptcy, ft 2.63, at 331-36 (14th ed. 1966).
Here the state court has had uninterrupted possession of the property since the commencement, on March 1, 1963, of the proceeding to foreclose the mortgage liens. Moreover, the state court acting through the receiver has had actual physical possession of the property since June, 1963. The cited cases make clear that under these circumstances the bankruptcy court does not have summary jurisdiction to compel delivery to it of the property presently in the possession of the state court or to adjudicate the validity of the mortgage liens. That the foreclosure proceeding was superseded by the condemnation action does not change the applicable law since the stay of the foreclosure proceeding and condemnation of the property did not revest the property in the bankrupt or otherwise interrupt the state court’s possession.
The trustee, who has been permitted to intervene in the state court proceeding, must pursue his remedies in that forum where he will have adequate opportunity to contest the validity of the mortgage liens and other claims to the res. Should the proceeds of the condemned property exceed the value of the liens upheld by the state court the trustee can move to have the surplus paid into bankruptcy court. See, e. g., Atlanta Flooring & Insulation Co. v. Russell, 145 F.2d 493 (5th Cir. 1944), cert, denied, 325 U.S. 862, 65 S.Ct. 1202, 89 L.Ed. 1983 (1945); Engelbreeht v. Wildman, 268 F.2d 133, 134 (9th Cir. 1959) (dictum) ; see generally, 1 Collier, Bankruptcy, ¶ 2.73, at 372-73 & nn. 10, 11 (14th ed. 1966).
The order appealed from is affirmed.
. Section 18, 11 U.S.C. § 41.
. On the preceding day the state supreme court stayed the foreclosure action pending determination of the condemnation proceeding.
. The receiver is not subject to the bankruptcy court’s summary jurisdiction merely because he was appointed within four months of the filing of the petition in bankruptcy. See Emil v. Hanley, 318 U.S. 515, 519-523, 60 S.Ct. 687 (1943) ; 1 Collier, Bankruptcy, ¶2.78 [1], at 375-80 (14th ed. 1966).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_decisiondirection
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B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. GIORDANO et al.
No. 72-1057.
Argued January 8, 1974
Decided May 13, 1974
White, J., delivered the opinion of the Court, in Parts I, II, and III of which all Members joined, and in Part IV of which Douglas, Brennan, Stewart, and Marshall, JJ., joined. Douglas, J., filed a concurring opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 580. Powell, J., filed an opinion concurring in Parts I, II, and III of the Court’s opinion and dissenting from Part IV, in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined, post, p. 548.
Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Petersen, Harriet S. Shapiro, and Sidney M, Glazer.
H. Russel Smouse argued the cause for respondents and filed a brief for respondent Giordano.
Mr. Justice White
delivered the opinion of the Court.
Title III-of the Omnibus Crime Control and Safe Streets Act UU1968, 82 Stat. 211-225, 18 U. S. C.' §§ 2510-2520, prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses. The Court must here determine whether the Government sufficiently complied with the required application procedures in this case and whether, if not, evidence obtained as a result of such surveillance, under a court order based on the applications, is admissible at the criminal trial of those whose conversations were overheard. In particular, we must decide whether the provision of 18 U. S. C. § 2516 (1) conferring power, on the “Attorney General, or any.Assistant Attorney General specially designated by the Attorney General” to “authorize an application to a Federal judge... for... an order authorizing or approving the interception of wire or oral communications” by federal investigative agencies seeking evidence of certain designated offenses permits the Attorney General’s Executive Assistant to validly authorize a wiretap application to be made. We conclude, that Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him and that primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by one of the statutorily designated officials must be suppressed under 18 U. S. C. § 2515 upon a motion properly made under 18 U. S. C. § 2518 (10)(a). Accordingly, we affirm the judgment of the Court of Appeals.
I
In the'course of an initial investigation of suspected narcotics dealings on the part of respondent Giordano, it developed that Giordano himself sold narcotics to an undercover agent on October 5, 1970, and also told an informant to call a specified number when interested in transacting narcotics business. Based on this and other information, Francis Brocato, an Assistant United States Attorney, on October 16, 1970, submitted an application to the Chief Judge of the District of Maryland for an order permitting interception of the communications of Giordano, and of others as yet unknown, to or from Giordano’s telephone. The application recited that Assistant Attorney General Will Wilson had been'specially designated by the Attorney General to authorize the application. Attached to the application was a letter -from Will Wilson to Brocato which stated that Wilson had reviewed Brocato’s request for authorization and had made the necessary probable-cause determinations and which then purported tb authorize Brocato to proceed with the application to the court. Also attached were various affidavits'of law enforcement officers stating the reasons and justification for the proposed ^interception.. Upon reviewing the application, the Chief Judge, issued an order on the same day authorizing the interception “pursuant to application authorized by the Assistant Attorney General... Will Wilson, who has been specially designated in this proceeding by the Attorney General... to exercise the powers conferred on him by [18 U. S. C. §2516].” On November 6, the same judge extended the intercept authority based on an application similar in form to the original, but also including information obtained from the interception already authorized and carried out and extending the authority to conversations óf additional named individuals calling from or to Giordano’s telephoné. The interception was terminated on November' 18 when Giordano and the other respondents were- arrested and charged with viola-'tions of the narcotics laws..
Suppression hearings'followed pretrial notification by the Government, see § 2518 (9), that it intended tó use in evidence the results of the court-authorized interceptions of communications on Giordano’s telephone. It developed at the hearings'that the applications for interception authority presented to the District Court had inaccurately described the official who had' authorized the applications and that neither the initial application for the October 16 order nor the application for the November 6 extension order had been approved and authorized by Assistant Attorney General Will Wilson, as the applications had indicated. An affidavit of the Executive Assistant to the Attorney General divulged that he, the Executive Assistant, had reviewed the request for authorization to apply for the initial order, had concluded, from his “knowledge of the Attorney General’s actions on previous cases, that he would approve the request if submitted to him,” and, because the Attorney General was then on a trip- away from Washington,. D. C., and pursuant to authorization by the Attorney General for him to do so in such circumstances, had approved the request and caused the Attorney General’s initials to be placed on a memorandum to Wilson instructing him to authorize Brocato to proceed. The affidavit also stated that the Attorney General himself had approved the November 6 request for extension and had initialed the memorandum to Wilson designating him to authorize Brocato to make application for an.extension' order. It was also revealed that although the applications recited that they had been authorized by Will Wilson, he had not himself reviewed Brocato’s applications, and that his action was at best only formal authorization to Brocato. Furthermore, it became apparent that Wilson did not himself sign either of the letters bearing his name‘and accompanying the applications io the District Court. Instead, it appeared that someone in Wilson’s office had affixed his signature after the signing of the letters had been authorized by a Deputy Assistant Attorney General in the Criminal.Division who had, in turn, acted after the approval of the request for authorization had occurred in and had -been received from the Office of the Attorney General.
. The District Court sustained the motions to suppress on the ground that the officer in the Justice Department approving each application had been misidentified in the applications and intercept orders, in • violation of 18 U. S. C. §§ 2518 (l)(a). and (4)(d), United States v. Focarile, 340 F. Supp. 1033, 1060 (Md. 1972). On the Government’s pretrial appeal under 18 U. S. C. § 3731, the Court of Appeals affirmed on the different ground that the authorization of the October 16 wiretap application by the Attorney General’s Executive Assistant violated § 2516 (1).of the statute and struck at “the very heart” of Title III, thereby requiring suppression of the wiretap and derivative evidence under §§ 2515 and 2518 (10)(a)(i) and (ii). 469 F. 2d 522, 531 (CA4 1972). We granted certiorari to resolve- the' conflict with decisions of the Court of Appeals for the Second Circuit with, respect to the administration of the circumscribed authority Congress has granted in Title III for the use of wiretapping and wiretap evidence by law enforcement officers. 411 U. S. 905.
II
The United States contends that the authorization of intercept applications by the Attorney General’s Executive Assistant was not-inconsistent with the statute and that even if it were, there being no constitutional violation, the wiretap and derivative evidence should not have been ordered suppressed. We disagree with both contentions.
Turning first to whether the statute permits the authorization of wiretap applications by. the Attorney General’s Executive Assistant, we begin with the language of § 2516 (1), which provides that “[t]he Attorney-General, or any Assistant Attorney General specially designated by the Attorney General, may authorize” an application for intercept authority. Plainly enough, the Executive Assistant is neither the Attorney General nor a specially designated Assistant Attorney General; but the United States argues that 28 U. S. C. § 509, deriving from the Reorganization Acts of 1949 and 1950, vests all functions of the. Department of Justice, with some exceptions, in the Attorney General, and that Congress characteristically assigns newly created duties to the Attorney General rather than to the Department of Justice, thus making essential the provision for delegation appearing in 28 U. S. C. §510:
“The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.”
It is therefore argued that merely vesting a duty in the Attorney General, as it is said Congress did in § 2516 (1), evinces no intention whatsoever to preclude delegation to other officers in the Department of Justice, including those on the Attorney General's own staff.
As a general proposition, the argument is unexceptionable. But here the matter of delegation is expressly addressed by § 2516, and the power of the Attorney General in this respect is specifically limited to delegating his authority to ‘ any Assistant Attorney General specially designated by the Attorney General.” Despite § 510, Congress does not always contemplate that the duties assigned to,the Attorney»-General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, “which function of certification may not be delegated.” 18 U. S. C. § 245 (a)(1). Equally precise language forbidding delegation wás not employed in the legislation-before us; but we think § 2516 (1), fairly read, was intended to limit the power to ’authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is. also strongly supported by its purpose and legislative history.
The purpose of the legislation, which was passed in 1968, was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of the serious crimes listed’ in § 2516. Judicial wiretap orders must be preceded by applications containing prescribed information, § 2518 (1). The judge must make certain findings before authorizing interceptions, including/the existence of probable cg¡use, § 2518 (3). The orders themselves must particularize the extent and nature of the interceptions that they authorize, § 2518 (4), and they expire within a specified time unless expressly extended by a judge based on further application by enforcement, officials, § 2518 (5). Judicial supervision of the progress of the interception is provided for, § 2518 (6), as is official control of the custody of any recordings or tapes produced by the interceptions carried out pursuant to the order, § 2518 (8). The Act also contains provisions specifying the circumstances and procedures under and by which aggrieved persons may seek and obtain orders for the suppression of intercepted wire or oral communications sought to. be used in evidence by the Government. § 2518 (10) (a).
The Act is not as. clear in some respects as it mignt be, but it is at once apparent that it not only limits the crimes for which intercept authority may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried, and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. §§2518 (l)(c) and (3) (c). The Act plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order.
The legislative history of the Act supports this view. As we have indicated, the Act was passed in 1968, but the provision of § 2516 requiring approval of applications by the Attorney General or a designated Assistant Attorney General dates from 1961, when a predecessor bill was being, considered in the 87th Congress. Section 4 (b) of that bill, S.' 1495, which was also aimed at prohibiting all but designated official interception, initially provided that the “Attorney General, or any officer of the Department of Justice or any United States Attorney specially designated by the Attorney General, may authorize any investigative or law enforcement officer of the United States or any Federal agency to apply to a judge” for a wire interception order. Hearings oh Wiretapping and Eavesdropping Legislation before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess.,'5 (1961). Under..that phraseology, the authority was centered in the Attorney General, but he could empower any officer of the Department of Justice, including United States Attorneys and the Executive Assistant, to authorize applications for intercept orders. At hearings on the bill, the Assistant Attorney General in charge of the Criminal Division stated the views of. the Department of Justice, and the Department later officially proposed, that the authority tq approve applications be substantially narrowed so that the Attorney General could delegate his authority only to an Assistant Attorney General. The testimony was:
“This is the approach of S. 1495, with which the Department of Justice is in general agreement. The bill makes wiretapping a crime unless specifically authorized by a Federal judge in situations involving specified crimes.' As I understand the bill, the application for a court order- could be made only by the authority of the Attorney General or. an officer of the Department of Justice or ■ U. S. Attorney authorized by him. I suggest that the bill should confine the power to authorize an application for a court order to the Attorney General and any assistant Attorney General whom he may designate. This would give greater assurance of a responsible executive determination of the need and justifiability of each interception.” Id., at 356.
The official proposal was that § 4 (b) be changed tc provide.that the “Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, may authorise” e, wiretap application. Id., at 372.
■ S. 1495 was not enacted, but its provision limiting those who could approve applications-for. court orders survived and was included in almost identical form in later legislative proposals, including the bill that became Title III of the Act now before us. In the course of testimony before a House Committee in 1967, the draftsman of the bill containing the basic outline of Title III engaged in the following colloquy:
“The Chairman.... About the origin of the application, as I understand it, your bill provides it must be originated by the Attorney General or an Assistant Attorney General.' Am I correct in that regard? >
“Professor Blakey. Yes, you are, Mr. Chairman.,
“The Chairman. The application must be made by the Attorney General or an Assistant Attorney General.
“Professor Blakey. If I am not mistaken, the present procedure is before any wiretapping or electronic equipment is used now it is generally approved at that level anyway,- Mr. Chairman, and- I would not want this equipment’ used without high level responsible officials passing on it. It may very well be that in some number of cases there will not be time to get the Attorney General to approve it. I think we are going to have just [sic] to let those cases go, and that if this equipment is to be used it ought to be approved by the highest level in the Department of Justice.. If we cannot make certain cases, that is going to have to be the price we will have to pay.” Hearings on Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1379 (1967).
As it turned out, the House Judiciary Committee' did not report out a wiretap bill, but the House did pass H. R. 5037, entitled the “Law Enforcement and Criminal Justice. Assistance Act of 1967,” 113 Cong. Rec. 21861 (Aug. 8, 1967). The Senate amended that bill by adding to it Title III, which in turn essentially reflected the provisions of S. 917, which had been favorably reported by the Senate Judiciary Committee and which contained the Committee’s own proposals with respect tó the interception of oral and wire communications. The report on the bill stated:
“Section 2516 of the new chapter authorizes the interception of particular wire or oral communication under court order pursuant to the authorization of the appropriate Federal, State, or local prosecuting officer.
“Paragraph (1)... centralizes in a.publicly responsible official subject to the political process the formulation of. law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to • an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.” S. Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968).
This report is particularly significant in that it not only recognizes that the authority to apply for court orders is to be narrowly confined but also declares that it is to be limited to those responsive to the political process, a category to which the Executive Assistant to the Attorney General- obviously does not belong.
The Senate passed H. It. 5037, with the amendments tracking the provisions of S. 917, on May 23, 1968, as the Omnibus Crime Control and Safe Streets Act of 1968, 114 Cong, Rec. 14798 and 14889. During the proceedings leading to the passage of the bill, emphasis was again placed on § 2516. That the Attorney General had the exclusive authority to approve or provide for the approval of wiretap applications was reiterated, and it was made clear that as the bill was drafted no United States Attorney would have or could be given the authority to apply for an intercept order without the advance approval of a senior officer in the Department. There was no congressional attempt, however, to extend that authority beyond the Attorney General or his Assistant Attorney General designate.
The Government insists that because § 2516 (2) provides for a wider dispersal of authority among state officers to approve wiretap applications and leaves the matter of delegation up to state law, it is inappropriate to confine the authority so narrowly on the federal level. But it is apparent that Congress desired to centralize and limit this authority where it was feasible to do so, a desire easily implemented in the federal establishment by confining the authority to approve wiretap applications to the Attorney General or a designated Assistant Attorney General. To us, it appears wholly at odds with the scheme and history of the Act to construe § 2516 (1) to permit the Attorney General to delegate his authority at will, whether it be to his Executive Assistant or to any jfiicer'in the Department other than an Assistant Attorney General.
nr
We also reject the Government's contention that even if the approval by "the Attorney General's Executive Assistant of the October 16 application did not comply with the statutory requirements, the evidence obtained from the interceptions should not have been suppressed. The issue does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III; and,.in our view, the Court of Appeals correctly suppressed the challenged wiretap evidence.
Section 2515 provides that no part of the contents of any wire or oral communication, and no evidence derived therefrom, may be received at certain proceedings, including trials, “if the disclosure of that information would be in violation of this chapter.” What disclosures are forbidden, and are subject to motions to suppress, is in turn governed by § 2518 (10) (a), which provides for suppression of evidence on the following grounds:
“(i) the communication was unlawfully intercepted ;.
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not'made in conformity with the order of authorization or approval.”
The Court of Appeals held that the communications the Government desired to offer in evidence had been “unlawfully intercepted” within the meaning of paragraph (i), because the October application had been approved by the Executive Assistant to the Attorney General rather than by the Attorney General himself or •a designated Assistant Attorney General. We have already determined that delegation to the Executive Assistant was indeed contrary to the statute; but the Government contends that approval by the wrong official is a statutory violation only and that paragraph- (i) must be construed to reach constitutional, but not statutory, Violations. The argument ■ is a straightforward one based on the structure of §2518 (10) (a). On the one hand, the unlawful interceptions referred to in paragraph (i) must include some constitutional violations. Suppression for lack of probable cause, for example, is not provided for in so many words and must fall within paragraph (i) unless, as is most unlikely; the statutory suppression procedures were not intended to reach constitutional violations at all. On the other hand paragraphs (ii) and (iii) plainly reach some purely statutory defaults without constitutional overtones, and these omissions cannot be deemed unlawful interceptions under paragraph (i), else there would have been no necessity for paragraphs (ii). and (iii) — or to pujb the matter another way, if unlawful interceptions under paragraph (i) include purely statutory issues, paragraphs (ii) and (iii) are drained of all meaning and are surplusage. The conclusion of the argument is that if nonconstitutional omissions reached by paragraphs (ii) and (iii) are not unlawful interceptions under paragraph (i), then there is no basis for holding that “unlawful interceptions” include any such statutory matters; the only purely statutory transgressions warranting suppression are those falling within paragraphs (ii) and (iii).
The position gains some support from the fact that predecessor bills specified a fourth ground for suppression — the lack of probable cause — which was omitted in subsequent bills, apparently on the ground that it was not needed because official interceptions without probable cause would be unlawful within the meaning of paragraph (i). k Arguably, the inference is that since paragraphs (ii) and (iii) were retained, they must have been considered “necessary,” that is, not covered by paragraph (i).
The argument of the United States has substance, and it does appear that paragraphs (ii) and (iii) must be deemed to provide suppression for failure to observe some statutory requirements that would not render interceptions unlawful under paragraph (i). But it does not necessarily follow, and we cannot believe, that no statutory infringements whatsoever are also unlawful interceptions within the meaning of paragraph (i). The words “unlawfully intercepted” are themselves not limited to constitutional violations, and we think Congress intended^ to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to thosé situations clearly calling for the employment of this extraordinary investigative device. We have already determined that Congress intended not only to limit resort to wiretapping to certain crimes and situations where probable cause is present but also to condition the. usé,of intercept procedures upon the judgment of a senior.‘official in the Department of Justice that the situation is one of those warranting their use. It is reasonable to believe that such a precondition would inevitably foreclose resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court and the court would very likely authorize its use. We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored.
The principal' piece of legislative history relative to this question is S. Rep. No. 1097, 90th Cong., 2d Sess. (1968). The Government emphasizes that the report expressly states that §2518 (10) (a) “largely reflects existing law” and that there was no intention to “press the scope of the suppression role beyond present search and seizure law.” Id., at 96. But the report also states that the section provides for suppression of evidence directly or indirectly obtained “in violation of the chapter” and that the provision “should serve to guarantee that the standards of the new chapter will sharply curtail •the unlawful interception of wire and oral communications.” Moreover, it would not extend existing search- and-seizure law for Congress to provide for the suppression of evidence obtained in violation of explicit statutory-prohibitions. Nardone v. United States, 302 U. S. 379 (1937); Nardone v. United States, 308 U. S. 338 (1939).
IV
■Even though suppression of the wire communications intercepted under the October 16, 1970, order is required, the Government nevertheless contends that communications intercepted under the Novémber 6 extension order are admissible because they are not “evidence derived” from the contents of communications intercepted under the October 16 order within the meaning of §§ 2515 and 2518 (10)(a). This position is untenable.
Under § 2518, extension orders do not stand on the same footing as original authorizations but are provided for separately. “Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section.” § 2518 (5). Under subsection (1) (e), applications for extensions must reveal previous applications and orders, and under (1) (f) must contain “a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.” Based on the application, the court is required, to make the same findings that are required in connection with the original order; that is, it must be found not only that there is probable cause in the traditional sense and that normal investigative procedures are unlikely to succeed but also that there is probable cause for believing that particular communications concerning the offense will be obtained through the interception and for believing that the facilities or place from which the wire or oral communications are to be intercepted are used or will be used in connection with the commission of such offense or are under lease to the suspect or commonly used by him. § 2518 (3).
In its November 6 application, the Government sought authority to intercept the conversations of not only Giordano, who alone was expressly named in the initial application and order, but of nine other named persons who were alleged to be involved with Giordano in narcotics violations. Based on the attached affidavit, it was alleged that there was probable cause to believe that communications concerning the offense involved would be intercepted, particularly those between Giordano and the other named individuals, as well as those with others as yet unnamed, and that the telephone listed in the ñame of Giordano and whose monitoring was sought to be continued “has been used, and is being used and will be used, in connection with the commission' of the offenses described.” App. 62.
In the affidavit supporting the application, the United States set out the previous applications and orders, incorporated by reference and reasserted the “facts, details and conclusions contained in [the] affidavits” supporting the prior wiretap application, and set down in detail the relevant communications overheard under the existing order, as well as the physical movements of Giordano observed as the result of an around-the-clock surveillance that had been conducted by the authorities. App. 65-•81. The Government concluded “[a]fter analyzing the intercepted conversations to and from [Giordano’s telephone] and the results of BNDD surveillance” that nine listed individuals, some identified only by aliases, were associated with Giordano as suppliers or buyers in illegal narcotics trafficking and that certain other persons were perhaps connected with the operation in an as yet undisclosed fashion. Id., at 79-80. It was also said that the full scope of Giordano’s organization was not yet known. Id., at 80. Assertedly, Giordano was extremely guarded in his telephone conversations, “any specific narcotics conversations he makes are from pay phones” and “[conventional surveillance would be completely ineffective except as an adjunct to electronic interception.” Id., at 81. The United States accordingly requested an extension of the interception order for no longer than a 15-day period.
It is apparent from the foregoing that the communications intercepted pursuant to the extension order were evidence derived from the communications invalidly intercepted pursuant to the' initial order. In the' first place, the application sought and the order granted authority to intercept the communications of various named individuals not mentioned in the initial order. It is plain from the affidavit submitted that information about most of these persons was obtained through the-initial illegal interceptions. It is equally plain that the telephone monitoring and accompanying surveillance were coordinated operations, necessarily intertwined. As the Government' asserted, the surveillance and conventional investigative techniques “would, be completely ineffective except as an adjunct to electronic interception.” That the extension order and the interceptions under it were not in fact the product of the earlier electronic surveillance is incredible.
Second, an extension order could validly be granted only upon an application complying with subsection (1) of §2518. Subsection (1) (e) requires that the fact of prior applications and orders be rev.ealed, and (1) (f) directs that the application set out either the results obtained under the prior order or an explanation for the absence of such results. Plainly the function of § 2518 (1) (f) is to permit the court realistically to appraise the probability that relevant conversations will be overheard in the future. If during the initial period, no communications of the kind, that had been anticipated had been overheard, the Act. requires an adequate explanation for the failure before the necessary findings can be made as a predicate to an extension order. But here there were results, and they were set out in great detail. Had they been omitted no extension order at all could have been granted; but with them, there were sufficient facts to warrant the trial court's finding, in accordance with §2518 (3) (b), of probable cause to believe that wire communications concerning the offenses involved “will be obtained through the interception,” App. 83, as well as.the finding complying with §2518 (3) (d) that there was probable cause to believe that Giordano’s telephone “has been used, is being used, and will be used, in connection with the commission of the offenses described above and is commonly used by Nicholas Giordano...” and nine other named persons. Ibid.
It is urged in dissent that the information obtained from the illegal October 16 interception order may be ignored and that the remaining evidence submitted in the extension application was sufficient to support the extensión order. But whether or not the application, without the facts obtained from monitoring Giordano’s telephone, would independently support original wiretap authority, the Act itself forbids extensions of prior authorizations without consideration of the results meanwhile obtained. Obviously, those results were presented, considered, and relied on in this case. Moreover, as previously noted, the Government itself had stated that the wire interception was an indispensable factor in its investigation and that ordinary surveillance alone would have been insufficient: In our view, the results of the conversations overheard under the initial order were essential, both in fact and in law, to any extension of the intercept authority. Accordingly, communications intercepted under the extension order are derivative evidence and must be suppressed. The judgment of the Court of Appeals is
Affirmed.
[For concurring* opinion of Mr. Justice Douglas, see post, p. 580.]
APPENDIX TO OPINION. OF THE COURT
Relevant Provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520
§ 2511. interception and disclosure of wire or oral communications prohibited.
(1) Except as otherwise specifically provided in this chapter any person who—
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use- any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows,, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business pr other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of'Puerto Rico, or any territory or possession of the United States;
(c) willfully discloses, or. endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or.
,(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection;
shall be fined not more than $10,000 or imprisoned not more than five years, or both.
(2) (a) (i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_genapel2
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Ilya V. TALEV, et al., Appellants, v. John E. REINHARDT, et al.
No. 79-1132.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 16, 1980.
Decided Aug. 31, 1981.
Alexander G. Park, Bethesda, Md., for appellants.
Alfred Mollin, Atty., Dept, of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and Robert Kopp, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellee. Susan M. Chalker and Leonard Schaitman, Attys., Dept, of Justice, Washington, D. C., also entered appearances for appellee.
Before ROBINSON, Chief Judge, MIKVA, Circuit Judge, and JUNE L. GREEN, District Judge.
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Chief Judge:
This appeal features a claim that the Voice of America (VOA), the broadcasting arm of the International Communication Agency, discriminates against an employee because of his national origin. Perceiving no. issue of fact material to the litigation, the District Court held that the evidence proffered by the employee did not make out a prima facie case, and entered summary judgment for VOA. We conclude that even if a prima facie case was established, it was effectively rebutted by an uncontested evidentiary tender by appellees demonstrating that the differentials protested are job-related, and thus no predicate for litigation.
I. BACKGROUND
Title VII of the Civil Rights Act of 1964, as extended by the Equal Employment Opportunity Act of 1972, prohibits federal employment practices having the purpose or effect of discriminating on the basis of race, color, religion, sex or national origin. In 1974, Ilya V. Talev, a Bulgarian-born American citizen, was hired by the Bulgarian Section of VOA’s European Division to prepare and broadcast radio programs in his native tongue. Talev initially had indicated that he was amenable to a foreign service position at the grade equivalent of GS-7, and a minimum salary of $12,000. Eventually, however, he was offered, and accepted, employment at a grade equal to GS — 9 and salaried at $13,193. Nevertheless, Talev quickly grew dissatisfied with his grade level and remuneration. After unsuccessfully seeking gratification administratively, he sued in District Court on behalf of himself and others purportedly similarly situated, alleging discrimination on account of national origin.
In essence, Talev’s complaint charged that employees in VOA’s Worldwide English Division, who primarily are American-born, are given preferential treatment in comparison with employees in VOA’s European Division, who largely are foreign-born. In an attempted support of this, claim, Talev pointed to various facially neutral VOA employment policies and practices assertedly operating to the disadvantage of foreign-born employees. Talev lost on a bid for class certification, but prevailed substantially on his motion to compel discovery of statistical data on VOA employees. With these data, Talev proffered extensive statistical evidence, and both sides moved for summary judgment. The District Court, concluding that Talev had not met his burden of establishing a prima facie case of employment discrimination, entered judgment in favor of appellees, and sua sponte taxed costs against Talev.
In the main, Talev assails the District Court’s ruling that his evidentiary tender did not make out a prima facie case. In addition, he asserts that the court erred in denying his motion for class certification, in restricting discovery, and in assessing costs against him. Appellees, in turn, argue that Talev did not present sufficient evidence to generate a claim under Title VII or, if he did, that higher grades and salaries existent in the Worldwide English Division are explained by heavier responsibilities shouldered by employees therein, as well as by superior qualifications they bring to their tasks. Appellees resist all of Ta-lev’s other contentions except the last, which they say is moot in light of their decision not to seek costs. In view of that position, we vacate the award of costs, and proceed to consider the remainder of Ta-lev’s challenges.
II. THE GOVERNING PRINCIPLES
The shifting burdens of proof in Title VII “disparate impact” litigation are well entrenched. The complainant has the initial burden of constructing a prima facie case by showing that facially neutral employment standards operate in a proscribed discriminatory fashion. The burden then falls upon the employer to demonstrate that these standards have “a manifest relationship to the employment in question.” The complainant may then show that other policies or practices would “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship’ ” without a discriminatory impact.
This analytical approach is to be taken whether the adjudicative context is summary judgment or trial. But since summary judgment is appropriate only where “there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law,” the court must ascertain at each successive stage whether any fact essential to the claim or defense is disputed and, if not, whether on the basis of the proffered evidence a summary disposition is legally demandable. Our task on this appeal is to ascertain whether the District Court was obedient to these tenets.
III. TALEV’S SHOWING
Talev asserts that he presented a prima facie case of national-origin discrimination when he submitted statistical evidence disclosing that employees in VOA’s Worldwide English Division fare better in terms of grade, salary and promotion than employees in the European Division. This contention rests on a combination of several items. More journeyman positions were authorized for the Worldwide English Division than for the European Division. European Division employees were primarily foreign-born, and Worldwide English Division employees mainly were American-born. Foreign-born employees had lower personal grades and salaries on the average than American-born employees. More foreign-born than American-born employees had personal grades below the grade of the position to which they were assigned, and more American-born than foreign-born employees had personal grades above the grade of their assigned position. More American-born than foreign-born employees had personal grades established on the basis of their grasp of American foreign policy and of the cultural situation in one or more foreign countries, rather than on the basis of their journalistic training and experience.
Talev appears to attribute these disparities mainly to four alleged practices at VO A: (1) appointing employees to positions without regard to their personal grades; (2) maintaining separate promotional categories for English-language and foreign-language broadcasters; (3) setting the grades of new employees on the basis of positions available rather than the employees’ qualifications; and (4) hiring at junior levels and promoting from within.
We need not ponder the question whether the District Court was correct in its holding that this evidentiary tender was insufficient to attest a prima facie case of employment discrimination under Title VII. VO A offered evidence tending strongly to show that all of the variances to which Talev points are the result of substantial differences in the qualifications and job responsibilities of employees in the two divisions. Not only was VOA’s submission overwhelming, but it also was undisputed by countervailing evidence. That sealed Talev’s fate on the cross-motions for summary judgment.
IV. APPELLEES’ SHOWING
A. The General Rebuttal
The Worldwide English Division, as its title implies, broadcasts to countries around the globe. It does so for many more hours each day than foreign-language programs of the European Division are aired. Moreover, the Worldwide English staff must be able to perform a variety of tasks not required of foreign-language broadcasters, among which are the development of original broadcast material including features, roundtable discussions and documentaries. Worldwide English employees must also be able to function day-to-day as correspondents on special assignments throughout the Nation and the world. On the other hand, broadcasters in the European Division, limited as they are by the amount of air time available, usually present relatively brief news programs. Even when time permits, they generally broadcast only translated adaptations of material developed by the Worldwide English Division. Resultantly, employees in the European Division are called upon to handle far fewer and less demanding assignments than those in the Worldwide English Division.
Employees in the two divisions also vary substantially in the qualifications they bring to the job. Professional broadcasters and graduates of journalism schools provide a diverse and talented pool from which Worldwide English broadcasters are hired, but practical and political realities severely curtail VOA’s ability to lure equally qualified foreign-language broadcasters. Not only are there few foreign-language radio stations in the United States from which experienced foreign-language broadcasters can be sought, but also most professional broadcasters in Eastern European countries are unavailable for VOA recruitment. As a consequence, foreign-language broadcasters at VOA normally have had substantially less professional journalistic experience than VOA’s Worldwide English broadcasters.
Comparisons of grades, salaries and promotional opportunities within the two divisions that do not take these differences in qualifications and responsibilities into account are plainly incapable of carrying the day for Talev, absent additional evidence that other means are available to insure satisfaction of VOA’s legitimate interest in “efficient and trustworthy workmanship” without occasioning such differentials. Talev’s failure to proffer such evidence compels the conclusion that appel-lees have met their burden of demonstrating that even if the variances complained of sufficed to make out a prima facie case of national-origin employment discrimination, they were job-related and thus not violative of Title VII.
B. The Challenged Practices
In supplementation of their general rebuttal, appellees proffered further evidence — likewise uncontested — portending a showing that the practices which Talev assails either are justified by business necessity or were not a cause of any of the differentials at issue. We consider, in turn, each of Talev’s contentions in light of this evi-dentiary material.
1. Appointment Without Regard to Personal Grade
Talev argues that VOA’s facially neutral policy of appointing employees to positions without regard to their personal grades accords those in the Worldwide English Division greater compensation than those in the European Division doing the same work. This so-called “rank in person” system— which statutorily governs the appointment and assignment of all Foreign Service employees, and thus those at VOA — permits the agency to assign and transfer employees from post to post as its organizational interests may require. The rank in person system differs from the “rank in position” system of the civil service, under which the employee and his position are assigned the same grade. Under the rank in person system, grades are assigned to positions and employees separately, with the grade of the position assessed at its maximum performance level, and the grade of the employee established on the basis of his or her personal qualifications. The result is that Foreign Service employees frequently occupy positions having higher grades than their personal grades. Similarly, it often happens that two employees having substantially different qualifications or experience may be assigned to positions bearing the same rank. That they receive incommensurate salaries, though assigned to positions of equivalent grades, is amply explained by the differences in qualifications and responsibilities of employees in the two divisions.
2. Promotional Disparities
Talev next urges that VGA’s maintenance of separate promotional categories for English-language and foreign-language broadcasters renders the advancement opportunities for foreign-born employees inferior. He insists that the sole distinction underlying these groupings is national origin, and cites the greater number of journeyman positions and journeyman-level employees in the Worldwide English Division than in the European Division as proof of discriminatory effect.
This contention, too, however, founders when examined in light of appellees’ proffered evidence. First, as we have said, variation in number of journeyman employees and authorized journeyman positions is adequately explained by both the “rank in person” system and the differences in professional training of, and types of work performed by, employees in the two divisions. Additionally, while as a general rule VOA separates the two divisions for purposes of employee advancement, it avowedly does so to enable foreign-language broadcasters to vie for available positions in the European Division without having to compete with the generally more journalistically experienced English-language broadcasters. And, while language barriers make transfers from one division to the other difficult, such transfers do occur, and more frequently from the European Division to the Worldwide English Division than vice versa.
3. Grade Establishment
Talev’s last contention is that VOA sets the grade of new employees in terms of the position available, rather than on the basis of the employee’s age, qualifications and experience as required by the Foreign Service Act, and that this practice operates to discriminate against foreign-born employees. In support of this claim, Talev submitted statistical evidence showing that while half of the English-language broadcasters were graded congruently with positions requiring knowledge of economic, cultural and political conditions in foreign areas, less than 20 percent of the foreign-language broadcasters were so treated. Grading of foreign-language broadcasters, Talev urges, emphasizes qualifications and characteristics more common among American-born than foreign-born applicants, with the result that the latter suffer in the process. To fully grasp Talev’s thesis, we must review briefly the job-classification and the employee-qualification policies in operation at VOA at the time he was hired.
Prior to 1971, the post for which Talev was engaged — that of Writer (Radio) — was considered a civil service job, and thus was ranked according to civil service classification standards. The criteria applicable to Talev’s job were those of the GS — 1082 occupational classification series, which governed writing and editing appointments generally. These standards were drawn broadly and referred to positions, not the qualifications of employees filling them Under the civil service system, applicants for vacant positions were selected for their ability to perform the duties thereof, a determination abiding by the civil service employee qualification standards applicable to GS — 1082 jobs. Because those jobs were classified as writing and editing functions, the pertinent standards stressed journalistic training at the expense of academic credentials.
In 1971, all VOA positions came within the purview of the Foreign Service personnel system set forth in the Foreign Service Act. Consequently, when in 1974 Talev came aboard, his entrance grade had to be set in accordance with his “age, qualifications and experience.” The changeover, however, from the civil service to the foreign service system was still fairly recent, and no foreign service employee-qualification standards for Talev’s post had been established. VOA therefore relied upon the old civil service employee-qualification standards in establishing Talev’s grade, and weighed his relative lack of journalistic experience more heavily than his relatively extensive academic training.
Talev complains that this methodology was inappropriate, and that VOA should have fixed his grade by reference to standards applicable to the GS-1085, rather than the GS-1082, occupational classification series, which arguably would have placed more emphasis on his academic background. But there never were any civil service employee-qualification standards for the GS-1085 series and, moreover, the GS-1085 job-classification series was reserved for policymaking and supervisory positions above the journeyman level. Talev thus not only confuses- job-classification standards with employee-qualification standards, but also insists that his grade should have been fixed by resort to nonexistent standards for a position he never held. The evidence he relies upon shows nothing more than that a larger number of policy-making and- supervisory positions are authorized for the Worldwide English Division than for the European Division, a fact we already have accepted as job-related.
V. CONCLUSION
Talev’s statistical tender, if unexplained, may have sufficed to raise an inference — as the greater likelihood — that the VOA policies complained of affect foreign-born broadcasters more harshly than American-born broadcasters, and do so on account of national origin. But VOA’s uncontested proffer of proof revealed that its practices are designed to serve its governmental mission, or that they did not contribute to the results Talev challenges. Talev did not come forward with any evidence indicating that those effects could be avoided by adoption of alternative methods that would meet VOA’s operational requirements.
We affirm, then, the District Court’s grant of summary judgment in favor of appellees without reaching the issue of class certification. As earlier stated, however, we vacate the District Court’s order taxing costs to Talev.
So ordered.
. The International Communication Agency is the successor to the United States Information Agency, the parent agency of VOA when suit was filed.
. Talev v. Reinhardt, Civ. No. 76-1301 (D.D.C. Dec. 13, 1978) (order).
. The appellees are John E. Reinhardt, Director of the International Communication Agency, and Kenneth R. Giddens, Assistant Director of VOA. Originally named as defendants were Giddens and James Keogh, Reinhardt’s predecessor. In due course, pursuant to Fed.R.Civ.P. 25(d), the District Court substituted Reinhardt for Keogh. Id. (Jan. 19, 1978) (order).
. Pub.L.No.88-352, tit. VII, 78 Stat. 253 (1964), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1976) [hereinafter cited as codified].
. Pub.L.No.92-261, 86 Stat. 103 (1972), codified, as amended, variously at 42 U.S.C. §§ 2000e to 2000e-17 (1976) [hereinafter cited as codified],
. 42 U.S.C. § 2000e-16 (1976).
. VOA has seven language divisions: Worldwide English, European, Latin American, U.S. S.R., African, East Asian and Pacific, and Near Eastern and South Asian. The European Division, which broadcasts primarily to Eastern Europe, has 13 separate language services, including the Bulgarian Service to which Talev is assigned. See VOA Organizational Chart, Certified Index to Record (C.I.R.) Doc. 36 (Exhibit (Ex.) F).
. Transcript of Administrative Hearing, vol. 3, at 16, C.I.R. Doc. 36 (Ex. A-3) [hereinafter cited as Tr.].
. For a decade, all VOA personnel have been within the foreign service personnel system, now set forth in the Foreign Service Act of 1980, Pub.L.No.96 — 465, 94 Stat. 2071 (1980), 22 U.S.C.A. §§ 3901 et seq. (West Supp.1981). The 1980 Act supersedes the Foreign Service Act of 1946, Pub.L.No.79-724, 60 Stat. 999 (1946), as amended, 22 U.S.C. §§ 801 et seq. (1976), which was in vogue when Talev came to VOA in 1974. See American Fed’n of Gov’t Employees v. Rogers, Civ. No. 71-3141 (D.D.C. June 12, 1973) at 3 n.2 (memorandum opinion). We need not concern ourselves with differences between the 1946 and 1980 statutory schemes. Talev grounds his complaint exclusively on Title VII and the Fifth Amendment, see note 65 infra, and in any event the 1980 Act provides that ‘‘[a]ny grievances, claims, or appeals which were filed or made under [authority of the Foreign Service Act of 1946] and are pending resolution on the effective date of this Act shall continue to be governed by the provisions repealed, modified, or affected by this Act.” 22 U.S.C.A. § 4172 (West Supp.1981). References herein will be made, then, to the repealed rather than the current legislation.
. United States Information Agency, Report of Investigation, Equal Employment Opportunity Complaint of Ilya V. Talev, C.I.R. Doc. 36 (Ex. A-l, 37) [hereinafter cited as EEO Report].
. Tr., vol. 1, at 27; EEO Report, supra note 10, at 34.
. EEO Report, supra note 10, at 130. Talev said that his initial decision to accept a $12,000 salary was based on false information; that the grade he eventually received was that of secretaries, not persons of his education and teaching experience; and that personnel editing his work were reducing the language he used “to the substandard level of their own.” Id. at 132.
. Talev’s administrative complaint originally alleged discrimination both on religious and national-origin grounds, but subsequently was amended to omit the charge of religious bias. See id. at 2. Following an investigation and a hearing before an equal employment opportunity complaints examiner, see Findings and Recommended Decision In the Discrimination Complaint of Ilya v. Talev, C.I.R. Doc. 36 (Ex. A-4) [hereinafter cited as Administrative Decision], the Civil Service Commission concluded that the record failed to support Talev’s discrimination claim. Id. at 5.
. Talev’s motion for class certification subsequently was denied by the District Court. See text infra at note 19.
. Complaint 2, Appendix (App.) 6-36. Also named as plaintiffs in the action were three others. Because none of them had been parties to the administrative proceedings, the District Court dismissed two, U Kyaw Aye and U Kyin Oo. Talev v. Keogh, No. 76-1301 (D.D.C. Nov. 11, 1976) (order). The court later dismissed the third, Josephina Martinez, on the ground that she stated only a claim of sex discrimination. Id. (Feb. 15, 1977) (order).
. See note 7 supra.
. Fluency in the language utilized in a VOA division’s broadcast is a condition to employment as a broadcaster therein. It thus is not surprising that foreign-language broadcasters likely are natives of the countries to which they broadcast, and that most Worldwide English broadcasters are native-born Americans. Tr., vol. 4, at 37.
. See Complaint 15(b), (e), (f), (g), (i), App. 26-29.
. Talev v. Keogh, supra note 15, (Nov. 11, 1976), (order), App. 89.
. Id. (Apr. 20, 1977) (order), App. 128. A protective provision barred discovery of information revealing the race or sex of VOA employees or the identities of those foreign-bom. Id.
. Talev apparently used the data to supplement a statistical presentation he had made at the administrative level. See Administrative Decision, supra note 13, App. 260.
. See Statement of Points and Authorities in Opposition to Defendant’s (sic) Motion for Summary Judgment and in Support of Plaintiffs Motion for Summary Judgment 7-10, App. 170-173.
. Talev v. Reinhardt, supra note 2, (Dec. 13, 1978) (order), App. 253.
. Id.
. Brief for Appellant at 44-56.
. Id. at 26-44.
. Id. at 56-60.
. Id. at 60-62.
. Brief for Appellees at 29 — 48.
. Id. at 53 n.28.
. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158, 165 (1971).
. E. g., Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-2727, 53 L.Ed.2d 786, 797 (1977); Griggs v. Duke Power Co., supra note 31, 401 U.S. at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. See also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 966 (1978) (disparate treatment); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973) (same).
. Dothard v. Rawlinson, supra note 32, 433 U.S. at 329, 97 S.Ct. at 2726-2727, 53 L.Ed.2d at 797; Griggs v. Duke Power Co., supra note 31, 401 U.S. at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. See also McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.
. Dothard v. Rawlinson, supra note 32, 433 U.S. at 329, 97 S.Ct. at 2726-2727, 53 L.Ed.2d at 979, quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280, 301 (1975), in turn quoting McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 801, 93 S.Ct. at 1823, 36 L.Ed.2d at 677. Rebuttal in a disparate impact case by a showing of alternative nondiscriminatory practices is equivalent to demonstration in a disparate-treatment case that the employer’s purported explanation is merely a pretext, and thus not actually a justification for the discrimination charged. Compare McDonnell Douglas Corp. v. Green, supra note 32, 411 U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679.
. See the discussion in Abraham v. Graphic Arts Int’l Union, 212 U.S.App.D.C. 412, 415, 416 & n.29, 660 F.2d 811, 814-815 & n.29 (1981).
. Fed.R.Civ.P. 56(c).
. See text supra at notes 32-34.
. See Abraham v. Graphic Arts Int’l Union, supra note 35, 212 U.S.App.D.C. at 416 & n.29, 660 F.2d at 814-815 & n.29.
. These data reflect conditions at VOA as of March, 1975. Brief for Appellant at 49.
. Id.
. The Worldwide English Division had five times the number of positions above the journeyman level, and almost three times the number of employees in grades above the journeyman level, existing in the European Division; more than twice as many employees in the European Division had grades below the journeyman level. Id. at 54.
. Specifically, Talev’s statistics revealed that the average grade of employees in the European Division was.8 lower than that for employees in the Worldwide English Division, and that the average salary of European Division employees was $4,123 lower than that of Worldwide English Division employees. Id. at 54.
. Twice as many Worldwide English broadcasters had grades higher than those of the positions to which they were assigned; twice as many foreign-language broadcasters had grades below those of their assigned positions. Id. at 52.
. Twice as many Worldwide English broadcasters were filling such positions. Id. at 49.
. Despite Talev’s apparent attempt to show a causal relationship between the four employment practices complained of and the four discriminatory effects alleged, no precise conclusion emerges. See Part IV infra.
. Brief for Appellant at 51-53.
. Id. at 53-56.
. Id. at 47-49.
. Id. at 49-50.
. Appellees argue that Talev actually complains of discrimination on the basis of alienage rather than national origin, and for that reason he thus fails to state a claim under Title VII. Brief for Appellees at 44-47. We do not reach this contention, for we find that even if Talev established a prima facie case, appellees effectively rebutted it. See Parts IV and V infra.
. That evidence is summarized in Part IV infra.
. See text supra at notes 32-34.
. Tr., vol. 2, at 99.
. Worldwide English Division broadcasts extend over more than 22 hours each day. See Tr., vol. 4, at 4. None of the language services in the European Division exceed 17.5 hours of broadcast time per week; the Bulgarian Service broadcasts only 10.5 hours weekly, an average of only 1.5 hours per day. Tr., vol. 2, at 101; Brief for Appellees at 16.
. Tr., vol. 2, at 100-102.
. Tr., vol. 4, at 16. The Worldwide English Division thus operates much like our nationwide commercial radio networks, providing comparable coverage of such major news events as space flights, elections and national conventions. Tr., vol. 4, at 18.
. Tr., vol. 2, at 102-104. See note 54 supra.
. See Tr., vol. 2, at 102.
. Tr., vol. 2, at 102; vol. 4, at 14-15.»
. Tr., vol. 1, at 32; vol. 2, at 94. Many applicants for broadcast positions in the Worldwide English Division have 20 or more years of professional broadcasting experience. Tr., vol. 4, at 12. Five or six years of hard experience is considered a minimum qualification. Tr., vol. 4, at 11-12.
. See Tr., vol. 2, at 95-96.
. One VOA official explained the situation this way:
For some languages VOA can hire directly from overseas. We will hire people who are broadcasters in their own country who have experience. But where we are talking about Eastern Europe and the Soviet Union, there is no way we can hire directly. Say from Bulgaria, there is no way the Bulgarian government is going to allow someone out to broadcast for VOA. And obviously, if they were going to let somebody out directly, we would be very leary of security problems.
Tr., vol. 2, at 96.
. Tr., vol. 2, at 96. The European Division does, however, employ several highly qualified broadcasters whose professional experience is comparable to that of the most experienced Worldwide English Division broadcasters. See Tr., vol. 4, at 32-33.
. Talev’s statistical expert conceded as much, acknowledging that the lack of parity in training and duties between employees in the two groups might well explain the disparities of which Talev complains. Tr., vol. 2, at 17-18, 20.
. Talev asserts that this practice additionally violates the equal-pay provisions of the Federal Pay Comparability Act of 1970, Pub.L.No.89-554, 80 Stat. 458 (1966), as amended, 5 U.S.C. § 5301 (1976 & Supp. IV). We do not consider this claim, for his presentation to the District Court was grounded exclusively on Title VII and the Fifth Amendment. Complaint ¶¶ 1, 3, App. 6-8. See, e. g., Miller v. Avirom, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967). Although Talev did advert to the Pay Comparability Act in his complaint, see Complaint U 15, App. 24, we do not read this reference as a separate claim for relief.
. See note 9 supra.
. 22 U.S.C. § 923 (1976) (repealed 1980). See note 9 supra. We note that the rank in person system is retained in § 923’s successor provision. See 22 U.S.C.A. § 3982 (West Supp. 1981).
. Tr., vol. 3, at 85-88.
. Tr., vol. 3, at 85-88.
. Tr., vol. 3, at 86. Assignments to positions with higher grades apparently are much sought after, for successful performance in these positions can enhance an employee’s chances for promotion. See Brief for Appellees at 7.
. See Tr., vol. 3, at 86.
. See text supra at notes 53-64.
. Brief for Appellant at 53-56.
. Id. at 53.
. Id. at 54.
. See text supra at note 69.
. See text supra at notes 53-64.
. Tr., vol. 3, at 96.
. Talev himself is a good example of this. By the time he brought this litigation, he already had received two promotions in the Bulgarian Section even though his broadcasting qualifications were measurably lower than those of most Worldwide English Division broadcasters. See Tr., vol. 3, at 96-97; Brief for Appellees at 13.
. Tr., vol. 1, at 80-81; vol. 2, at 58.
. Tr., vol. 4, at 31-32.
. 22 U.S.C. § 923 (1976) (repealed 1980). See note 9 supra.
. Brief for Appellant at 47^19.
. See id. at 49; text infra at notes 85-96, and note 94 infra.
. Tr., vol. 2, at 87-88.
. Positions in the GS-1082 occupational classification series are described as follows:
This series includes positions that involve as their primary function, writing, rewriting or editing reports, articles, news stories and releases which are to appear in publications, reports, periodicals, or the press; or speeches that are to be presented in person, or by means of radio or television, or radio, television, or motion picture scripts. This kind of writing and editing requires the ability to acquire information about different subjects and to analyze, select, and present the information in a form suitable for the intended audience. It does not require substantial subject matter knowledge.
Handbook of Groups and Series of Classes, Writing and Editing Series, GS-1082, C.I.R. Doc. 40 (Ex. M).
. Id.
. Tr., vol. 2, at 61-70; Qualifications Standards: Writing and Editing Series, GS-1082, C.I.R. Doc. 40 (Ex. K).
. See note 86 supra.
. See note 9 supra.
. See note 82 supra.
. Tr., vol. 2, at 88. Just why this was so is unclear from the record.
. Tr., vol. 2, at 88.
. Positions in the GS-1085 classification series are described as follows:
This series includes positions the duties of which are (1) to advise on, administer, supervise, or perform research and operational work in the formulation, direction, management, and evaluation of information programs to foreign audiences or (2) to plan, supervise, or perform information work related to the creation, preparation, and dissemination of printed, aural, visual, and audiovisual materials to foreign audiences. Positions in this series require a knowledge of the economic, social, cultural, and political conditions of the foreign area of assignment, of the foreign policy objectives of the United States with respect to the particular area of assignment, and the ability to present information by means of one or more of the mass communications media that will further these objectives.
Handbook of Groups and Series of Classes, Foreign Information Series, GS-1085, C.I.R. Doc. 40 (Ex. M).
. Tr., vol. 2, at 119. The qualification standards VOA used for the GS-1085 occupational classification series were borrowed from other sources, including “the supervisor grade evaluation guide, chap. 51 of Title 51 of Title V which deals with classifications in general,... [the] public information series,.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdispositiondirection
|
B
|
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
UNITED STATES et al. v. RYLANDER et al.
No. 81-1120.
Argued January 18, 1983
Decided April 19, 1983
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, post, p. 762.
Deputy Solicitor General Wallace argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General Archer, Jerrold J. Ganz-fried, Charles E. Brookhart, Jo-Ann Horn, and William A. Whitledge.
Joseph F. Harbison III, by appointment of the Court, 456 U. S. 1005, argued the cause and filed a brief for respondents.
Justice Rehnquist
delivered the opinion of the Court.
Respondent Rylander was held in civil contempt by the United States District Court for the Eastern District of California because of his failure to comply with its earlier order enforcing an Internal Revenue Service (IRS) summons for corporate books and records. The Court of Appeals for the Ninth Circuit reversed that holding, concluding that Rylander’s showing at the contempt hearing, together with his invocation of the privilege against compulsory self-incrimination, required the Government to shoulder the burden of producing evidence that Rylander was able to produce the documents in question. Because of a conflict among the various Courts of Appeals on this issue, we granted certiorari, 456 U. S. 943 (1982), and we now reverse.
In January 1979, the IRS issued a summons to Rylander pursuant to 26 U. S. C. § 7602. The summons ordered him to appear before an agent of the Service in Sacramento, Cal., and to produce for examination, and testify with respect to, books and records of two corporations. Rylander was the president of each corporation. When he failed to comply with the summons, the District Court issued an order to show cause why the summons should not be enforced. Ry-lander for several months succeeded in evading service, but in November 1979 the Marshal was able to personally serve the fourth successive order to show cause issued by the court. In January 1980, on the return date of that order, Rylander failed to file a responsive pleading and did not appear at the show cause hearing. He had sent an unsworn letter to the court claiming he was neither the president of either corporation nor associated with them in any way. The District Court enforced the IRS summons and ordered Rylander to appear before an agent of the Service in February 1980 to produce the corporate records.
Rylander neither sought reconsideration of the enforcement order nor did he appeal from it. He appeared as ordered before the agent, but failed to produce the records. After this encounter, the District Court issued an order to show cause why Rylander should not be held in contempt. Rylander again successfully evaded service of the court’s order, and the court in May 1980 found that he was willfully avoiding service and issued a bench warrant for his arrest.
The contempt hearing took place on two different dates in October 1980. After an initial skirmish, Rylander took the witness stand and verified an “Oath in Purgation of Contempt” which he had earlier submitted to the court. The essence of this declaration was that he did not possess the records and had not disposed of them to other persons. He refused to submit to additional questioning under oath from the Government, asserting the privilege against compulsory self-incrimination conferred by the Fifth Amendment to the United States Constitution.
The District Court held Rylander in contempt, finding that he had “fail[ed] to introduce any evidence” in support of his claim that he did not possess the records. The court affirmatively found that Rylander “as president or other corporate officer, had possession or control, or both, of the books and records of said corporations.” App. to Pet. for Cert. 17a-18a. Thus 21 months after the IRS had issued a summons to him, Rylander was finally faced with a civil contempt order directing him to either produce the subpoenaed records or face imprisonment.
Rylander appealed to the Court of Appeals, which reversed the District Court. 656 F. 2d 1313 (CA9 1981). The Court of Appeals agreed that the Government, in a contempt proceeding, meets its initial burden by showing only a failure to comply and the burden is then on the defendant to come forward with evidence showing “ ‘categorically and in detail’ ” why he is unable to comply. Id., at 1318. But the Court of Appeals concluded that a defendant need not meet this burden where “he properly claims that his testimony as to the whereabouts of the documents might be incriminatory.” Id., at 1319. The court stated further:
“When the defendant has made a bona fide fifth amendment claim, his statement that the documents are not in his possession or under his control is sufficient to satisfy his burden of production. The burden then shifts to the government to produce evidence showing that the documents in question actually exist and are in the defendant’s possession or under his control.” Ibid.
After concluding that Rylander’s failure to raise this defense in the enforcement proceeding did not limit his argument in the contempt proceeding, the court determined that if Rylander’s Fifth Amendment claim is valid, his burden of production had been met. We think the Court of Appeals was incorrect both in its view of the relationship between the enforcement proceeding and the contempt proceeding, and in its view of the effect of Rylander’s invocation of his Fifth Amendment privilege on the burden of production at the latter hearing.
On numerous occasions this Court has been called upon to review the statutory authorization for the IRS to summon witnesses and records and seek judicial enforcement of such summons. See, e. g., United States v. LaSalle National Bank, 437 U. S. 298 (1978); Fisher v. United States, 425 U. S. 391 (1976); United States v. Powell, 379 U. S. 48 (1964); Reisman v. Caplin, 375 U. S. 440 (1964). There is no disagreement here concerning that basic statutory scheme. In the present case, the Court of Appeals held that notwithstanding the issuance of the enforcement order, Rylander was free to relitigate the question of his possession or control of the records in the contempt proceeding. The Court of Appeals emphasized that the enforcement proceeding was summary in nature, that the Government’s burden was light, and that there had been no express finding in the enforcement proceeding that Rylander was in possession or control of the records.
We think the Court of Appeals’ view of the matter gave insufficient weight to this Court’s observations in Maggio v. Zeitz, 333 U. S. 56, 69 (1948):
“It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.”
See also id., at 75. Because a proceeding to enforce an IRS summons is an adversary proceeding in which the defendant may contest the summons “on any appropriate ground,” Reisman v. Caplin, supra, at 449, and because lack of possession or control of records is surely such a ground, the issue may not be raised for the first time in a contempt proceeding. Cf. United States v. Bryan, 339 U. S. 323 (1950); United States v. Fleischman, 339 U. S. 349 (1950). See also United States v. Euge, 444 U. S. 707 (1980).
In a civil contempt proceeding such as this, of course, a defendant may assert a present inability to comply with the order in question. Maggio v. Zeitz, supra, at 75—76; Oriel v. Russell, 278 U. S. 358, 366 (1929). While the court is bound by the enforcement order, it will not be blind to evidence that compliance is now factually impossible. Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action. It is settled, however, that in raising this defense, the defendant has a burden of production. McPhaul v. United States, 364 U. S. 372, 379 (1960); Maggio v. Zeitz, supra, at 75-76; Oriel v. Russell, supra, at 366. See also United States v. Fleischman, supra, at 362-363. Thus while Rylander could not attack the enforcement order on the ground that he lacked possession or control of the records at the time the order was issued, he could defend the contempt charge on the ground that he was then unable to comply because he lacked possession or control.
The Court of Appeals, while recognizing that Rylander was obligated to assume the burden of production in making this defense, felt that the showing made by Rylander at the October 1980 hearing was sufficient to shift the burden back to the Government. We disagree. We first analyze the effect of Rylander’s denial of possession when he took the witness stand at the contempt hearing and when he submitted the “Oath in Purgation of Contempt.” Since he declined to be cross-examined with respect to his assertions of nonpossession, the District Court was entirely justified in concluding, as it did, that Rylander “fail[ed] to introduce any evidence at the contempt trial.” This was a time for testimony, and Rylander’s ex parte affidavit and uncross-examined testimony were properly disregarded by the District Court. McGautha v. California, 402 U. S. 183, 215 (1971); Brown v. United States, 356 U. S. 148, 155 (1958).
The Court of Appeals also gave weight to the fact that Rylander’s asserted reason for refusing to allow cross-examination was his claim that answering such questions might lead him to incriminate himself. But while the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness such as Rylander declines to answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production. We think the view of the Court of Appeals would convert the privilege from the shield against compulsory self-incrimination which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of our cases support this view.
We have squarely rejected the notion, apparently subscribed to by the Court of Appeals, that a possible failure of proof on an issue where the defendant had the burden of proof is a form of “compulsion” which requires that the burden be shifted from the defendant’s shoulders to that of the government. McGautha v. California, supra; Williams v. Florida, 399 U. S. 78 (1970); see also Barnes v. United States, 412 U. S. 837 (1973); Turner v. United States, 396 U. S. 398 (1970); Yee Hem v. United States, 268 U. S. 178 (1925); Wilson v. United States, 162 U. S. 613 (1896). In Williams, the Court said:
“The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However ‘testimonial’ or ‘incriminating’ the alibi defense proves to be, it cannot be considered ‘compelled’ within the meaning of the Fifth and Fourteenth Amendments.” 399 U. S., at 83-84 (emphasis added).
The Court of Appeals nonetheless thought that this Court’s decision in Curcio v. United States, 354 U. S. 118 (1957), prevented Rylander from being required to carry his burden of production or risk the consequences from his failure of proof. We do not read the case that way. The issue in Curdo, as stated by the Court in its opinion in that case, was “whether petitioner’s personal privilege against self-incrimination attaches to questions relating to the whereabouts of the union books and records which he did not produce pursuant to subpoena.” Id., at 122. The Court went on to distinguish cases such as Hale v. Henkel, 201 U. S. 43 (1906), holding that a corporation had no Fifth Amendment privilege against self-incrimination, and cases such as Wilson v. United States, 221 U. S. 361 (1911), and United States v. White, 322 U. S. 694 (1944), holding respectively that the custodians of neither records belonging to unions nor those belonging to corporations might withhold production of such records on the ground that the custodian might be incriminated by their production. The Court refused to accept the Government’s contention, based on those cases, that the custodian had no privilege to refuse to testify about such records on grounds that testimony might incriminate him. In reversing the contempt conviction, however, the Court pointedly noted:
“This conviction related solely to petitioner’s failure to answer questions pursuant to the personal subpoena ad testificandum. He has not been charged with failing to produce the books and records demanded in the subpoena duces tecum.” 354 U. S., at 121.
The instant proceeding is exactly the converse of the one in Curdo. Rylander was originally ordered both to produce books and records and to testify about them. But the only order against him remaining at the time of the contempt hearing was the order to produce books and records. The Court of Appeals assumed, as we do, that Rylander’s claim of privilege “attached” to questions about the whereabouts of the records; that was the issue decided in Curdo. But that is to say no more than if Rylander asserted a valid claim of privilege at the contempt hearing, then the claim could not be overruled by the court and the respondent incarcerated for failure to answer such questions.
Rylander was not, however, incarcerated because he refused to submit himself to' cross-examination by the Government at the contempt hearing. He was held in contempt for failure to comply with a previous order of the District Court enforcing an IRS summons against him. This order, unappealed from, necessarily contained an implied finding that no defense of lack of possession or control had been raised and sustained in that proceeding. The only issue open to Rylander in defending the contempt proceeding was to show inability to then produce, and because of the presumption of continuing possession arising from the enforcement order, Maggio v. Zeitz, 333 U. S. 56 (1948), if he sought to defend on that ground he was required to come forward with evidence in support of it. The fact that his refusal to come forward with such evidence was accompanied by a claim of Fifth Amendment privilege may be an adequate reason for the court’s not compelling him to respond to cross-examination at the contempt hearing, but the claim of privilege is not a substitute for relevant evidence.
Rylander was found by the District Court to be in contempt of the enforcement order which required him to produce documents — documents justifiably found by the District Court to be in his possession. He was committed to custody until such time as he should produce the documents, but the District Court again saved him the additional alternative of adducing evidence to show lack of possession or control. Rylander is thus not compelled “to submit to incarceration or run the risk of incriminating himself,” 656 F. 2d, at 1319; he is committed until he either produces the documents which the District Court found to be in his possession, or adduces evidence as to his present inability to comply with that order.
We think our cases plainly support this result, and we are frank to say that we have no regret that they do. After 21 months of successfully avoiding sanctions for refusing to respond to an IRS summons, or show cause why he should not do so, with the District Court at each step patiently assuring itself that Rylander’s procedural rights were protected, he was finally held in contempt. The Court of Appeals’ view of the matter would require still additional hearings on the issue of possession or control of the corporate books or records, with the Government having the burden of production at the reopened contempt hearing. Given the oft-stated reliance of the federal income tax system on self-assessment, a plainer guide to the successful frustration of this system could hardly be imagined. As we said in an analogous context in United States v. Bryan:
“A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity.” 339 U. S., at 331.
The judgment of the Court of Appeals is
Reversed.
The Court of Appeals remanded to the District Court for a finding concerning the validity of Rylander’s Fifth Amendment claim and, provided the claim is sustained, an opportunity for the Government to introduce additional evidence concerning Rylander’s ability to comply.
The Government has argued that by submitting the ex parte declaration and by taking the witness stand to verify that declaration, Rylander waived his Fifth Amendment privilege. See Brown v. United States, 356 U. S. 148 (1958). Because of our disposition of the case, we need not decide this question.
While the District Court did not state explicitly that Rylander still possessed the documents at the time of the contempt proceeding, we believe such a finding to be plainly implicit in the court’s conclusion that “as president or other corporate officer [Rylander] had possession or control, or both, of the books and records of said corporations.” App. to Pet. for Cert. 17a-18a. A finding of present possession was supported in this case; the District Court found that Rylander possessed the documents at the time of the enforcement proceeding and the circumstances themselves warranted an inference of continuing possession. See Maggio v. Zeitz, 333 U. S. 56, 64-67, 75-76 (1948).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
George HOLLANDER, Plaintiff-Appellee, v. Alex HOLLANDER, Defendant-Appellant.
No. 372, Docket 28017.
United States Court of Appeals Second Circuit.
Argued June 4, 1963.
Decided June 17, 1963.
Copal Mintz, New York City, for defendant-appellant.
Morris Pottish, New York City, for plaintiff-appellee.
Before LUMBARD, Chief Judge, CLARK, Circuit Judge, and BARTELS, District Judge.
PER CURIAM.
In an action before Judge Dimock, defendant-appellant was found to have engaged in stock transactions for the joint account of himself and his brother, plaintiff-appellee. Judge Dimock ordered an accounting. When it was submitted, plaintiff thought it inadequate and sought to have defendant held in contempt. Judge Dawson agreed that the accounting was inadequate, but felt that defendant should be given a second chance to comply. When the second accounting was presented, plaintiff again moved to have defendant adjudged in contempt. Judge Bonsai found that defendant still had not complied with Judge Dimock’s order and appointed Frank H. Gordon, Special Master, to conduct a hearing so as to obtain the accounting which defendant persisted in failing to make. The result of these proceedings was a recommendation that defendant be held in contempt. Judge Bonsai accepted the Special Master’s recommendations, directed the defendant to pay $1,379 to plaintiff’s attorney as reasonable compensation and disbursements, together with $3,000 to the Master as fee, and further directed a proper accounting on penalty of a $3,000 fine. Defendant now appeals from this judgment.
Plaintiff asks us to reopen the denial of his motion to dismiss the appeal, made by another panel of this court. This, however, we are unwilling to do. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528. The defendant must pay over large sums of money to plaintiff’s attorney and the Special Master, and this order he cannot effectively appeal after the final judgment on the accounting. The issue on the merits is whether the defendant made a bona fide effort to comply with the district court’s mandates. In such a situation, demean- or has crucial importance. Beyond that, defendant’s conduct seems dubious and irresponsible. Thus there is no basis for setting aside the determinations- of two district judges and the Special Master.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1625, AFL-CIO, et al. v. SCHERMERHORN et al.
No. 368.
Argued April 18, 1963.
Decided June 3, 1963.
- S. G. Lippman argued the cause for petitioners. With him on the briefs were Tim L. Bomstein, Resell Specter and Claude Pepper.
Bernard B. Weksler argued the cause for respondents. With him on the brief was John L. Kilcullen.
J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine, Thomas E. Harris, Joseph L. Rauh, Jr., John Silard and Harold A. Cranefield filed a brief for the American Federation of Labor and Congress of (Industrial Organizations et al., as amici curiae, urging reversal.
Briefs of amici curiae, urging affirmance, were filed by Richard W. Ervin, Attorney General of Florida, Richmond M. Flowers, Attorney General of Alabama, Robert Pick-rell, Attorney General of Arizona, Evan L. Hultman, Attorney General of Iowa, William M. Ferguson, Attor-. ney General of Kansas, Joe T. Patterson, Attorney General of Mississippi, Clarence A. H. Meyer, Attorney General of Nebraska, T. Wade Bruton, Attorney General of North Carolina, Daniel R. McLeod, Attorney General of South Carolina, Frank Farrar, Attorney General of South Dakota, George F. McCanless, Attorney General of Tennessee, Waggoner Carr, Attorney General of Texas, and A. Pratt Kesler, Attorney General of Utah, for their respective States; by Robert Y. Button, Attorney General of Virginia, D. Gardiner Tyler, Assistant Attorney General, and Frederick T. Gray, Special Assistant Attorney General, for the Commonwealth of Virginia; and by William B. Barton and Harry J. Lambeth for the Chamber of Commerce of the United States.
Mr. Justice White
delivered the opinion of the Court.
Like Labor Board v. General Motors Corp., ante, p. 734, decided today, this case involves the status of an “agency shop” arrrangement. We have concluded that the contract involved here is within the scope of § 14 (b) of the National Labor Relations Act and therefore is congressionally made subject to prohibition by Florida law. We have not determined,' however, whether the Florida courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce the State’s prohibition against such arrangements. Accordingly, the case is retained on the calendar for reargument on the undecided issue.
Retail Clerks Local 1625 is the certified bargaining agent for the Food Fair Stores supermarket chain in five South Florida counties. In October I960- the union and the employer negotiated a collective bargaining agreement effective until April 1963. The contract provided for various terms and conditions of employment, such as protection against discharge except for just cause, paid vacations and holidays, pregnancy leaves of absence, life and hospitalization insurance, paid time off to vote, to serve on juries, and to attend funerals, as well as for wage-and-hour terms; a grievance and arbitration clause was inserted for enforcement of these terms, under which the union and employer agree to divide between them the cost of the grievance-arbitration machinery. The contract also contained Article 19, which is the subject of the present lawsuit:
“Employees shall have the right to voluntarily join or'refrain from joining the Union. Employees who choose not to join the Union, however, and who are covered by the terms of this contract, shall be required to pay as a condition of employment, an initial service fee and monthly service fees to the Union for the purpose of aiding the Union in defraying costs in connection with its legal obligations and responsibilities as -the exclusive bargaining agent of the employees in the appropriate bargaining unit. The aforesaid fees shall be payable on or before the first day of each month, and such sums shall in no case exceed the initiation fees and the membership dues paid by those who voluntarily choose to join the Union. Other than the payment of these service fees, those employees who do not choose to join the Union shall be under ho further financial obligations or requirements of any kind to the Union. It shall also be a condition of employment that all employees covered by this Agreement shall on the 30th day following the beginning of such employment or the effective date of this agreement, whichever is later, pay established initial and monthly service fees as shown above.”
The union and the employer jointly posted a notice to employees, immediately after execution of the collective agreement, explaining the new contract with particular reference to the agency shop clause:
“The Agency Shop recognizes that union membership in the State of Florida is a voluntary act of the employee.' On the other hand, under an Agency Shop Agreement, those Employees who do not become members of the Union nevertheless are required to pay the necessary service fees' to the Local Union in order to aid the Union in meeting its authorized expenses as the exclusive bargaining agent.
“Therefore, the Company and the Union have agreed that even though you may not have joined the Union, you are obligated, under the provisions of the Agency Shop, to pay an initial service fee which is the equal of the initiation fee for Union members and a monthly service fee which is the equal of the monthly dués for those who voluntarily become Union members. Note: An Employee who pays the regular initial fee and regular monthly service fee but does not voluntarily join the Union, does not participate' in the internal union affairs even though said Employee receives equal treatment under the . contract.”
The present class action was then instituted by respondents, four nonunion employees of Food Fair, who sought a declaration that Article 19 was “null and void and unenforceable,” a temporary and permanent injunction against petitioner and Food Fair to prevent them from requiring respondents or members of the class on behalf of which they sued (all Food Fair employees covered by the collective agreement) to contribute money to the union under Article 19, and an accounting. The trial court granted a motion to dismiss on the ground that Article 19 did not violate the Florida right-to-work law, Fla. Const. § 12. 47 L. R. R. M. 2300. The Florida Supreme Court reversed, holding that state law forbade and that its courts could deal with the agency shop clause involved here, and remanded the ease for further proceedings in the trial court. 141 So. 2d 269, cert. granted, 371 U. S.909.
I.
The case to a great extent turns upon the scope and effect of § 14 (b) of the National Labor Relations Act, added to the Act in 1947, 29 U. S. C. § 164 (b):
“Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution of application is prohibited by State or Territorial law.”
As is immediately apparent from its language, § 14 (b) was designed to prevent other sections of the Act from completely extinguishing state power over certain union-security arrangements. And it was the proviso to §8 (a) (3), expressly permitting agreements conditioning employment upon membership in a labor union, which Congress feared might have this result. It was desired to “make certain” that § 8 (a) (3) could not “be said to authorize arrangements of this sort in States where such arrangements were contrary to the State policy.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 60, 1 Leg. Hist. L. M. R. A. 564.
The connection between the §8(a)(3) proviso and § 14 (b) is clear. Whether they are perfectly coincident, we need not now decide, but unquestionably they overlap to some extent. At the very least, the agreements requiring “membership” in a labor union which are' expressly permitted by the proviso are the same “membership” agreements expressly placed within the reach of state law by § 14 (b). It follows that'the General Motors case rules this one, for we there held that the “agency shop” arrangement involved here — which imposes on employees the only membership obligation enforceable under § 8 (a) (3) by discharge, namely, the obligation to pay initiation fees and regular dues — is the “practical equivalent” of an “agreement requiring membership in a labor organization as a condition of employment.” Whatever may be the status of less stringent union-security arrangements, the agency shop is within § 14 (b). At least to that extent did Congress intend § 8(a)(3) and § 14 (b) to coincide.
Petitioners, belatedly, would now distinguish the contract involved here from the agency shop contract dealt with in the General Motors case on the basis of allegedly distinctive features which are said to require a different result. Article 19 provides for nonmember payments to the union “for the purpose of aiding the Union in defraying costs in connection with its legal obligations and responsibilities as the exclusive bargaining agent of the employees in the appropriate bargaining unit,” a provision which petitioners say confines the use of nonmember payments to collective bargaining purposes alone and forbids their use by the union for institutional purposes unrelated to its exclusive agency functions, all.in sharp contrast, it is argued, to the General Motors situation where the nonmember contributions are available to the union without restriction.
We are wholly unpersuaded. There is before us little more than a complaint with its exhibits. The agency shop clause of the contract is, at best, ambiguous on its face and it should not, in the present posture of the case, be construed against respondent to raise a substantial difference between this and the General Motors case. There is no ironclad restriction imposed upon the use of nonmember fees, for the clause merely describes the payments as being for “the purpose of aiding the Union” in meeting collective bargaining expenses. The alleged restriction would not be breached if the service fee was used for both.collective bargaining and other expenses, for the union would be “aided” in meeting its agency obligations, not only by the part spent for bargaining purposes but also by the part spent for institutional items, since an equivalent amount of other union income would thereby be freed to pay the costs of bargaining agency functions.
But even if all collections from nonmembers must be directly committed to paying bargaining costs, this fact is of bookkeeping significance only rather than a matter of real substance. It must be remembered that the service fee is admittedly the exact equal of membership initiation fees and monthly dues, see p. 749, supm, and that, as the union says in its brief, dues collected from members ■ may be used for a “variety of purposes, in addition to meeting the union’s costs of collective bargaining.” Unions “rather typically” use their membership dues “to do those things which the members authorize the union to do in their interest and on their-behalf.” If the union’s total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union’s budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union’s institutional activities. In over-all effect, economically, and we think for the purposes of § 14 (b), the contract here is the same as the General Motors agency shop arrangement. Petitioners’ argument, if accepted, would lead to the anomalous result of permitting Florida to invalidate the agency shop but forbidding it to ban the present service fee arrangement under which collective bargaining services cost the nonmember more than the member.
II.
The more difficult phases of this case remain. In petitioners’ motion to dismiss filed in the trial court the contract at issue was said to be. an arguable unfair labor practice and the subject matter of the action therefore within the exclusive jurisdiction of the National Labor Relations Board and beyond the power of the state courts to prohibit. The motion was granted, but on- another ground, and the preemption argument was renewed but rejected in the Florida Supreme Court. It is now pressed here and has at least two related but distinctive aspects.
It is first urged that whether or not a particular union-security contract is within the category subjected to state law by § 14 (b) is a matter for the Board and no business of the state courts, at least in the doubtful cases where the coverage of § 14 (b) is not a clearly settled matter. If a contract is not within § 14 (b), the argument goes, it is protected by federal law.. If within § 14 (b), the arrangement is an unfair practice, at least arguably so. Therefore, where the status of a contract for the purposes of § 14 (b) is at all doubtful, the Board is assertedly the tribunal to deal with the question. Although we were asked in the petition for certiorari, and again in petitioners’ brief for oral argument, to resolve the § 14 (b) issue in this agency shop case, the clear thrust of this phase of petitioners’ preemption argument is that neither the Florida, courts nor this Court should purport in the first instance to determine the status of an agency shop contract under § 14 (b).
There is much force in the argument that the assessment of any union-security arrangement for the purposes of §§ 7, 8 and 14 (b), when there is significant doubt about the matter, is initially a task for the Board, so that it may finally come to this Court with the benefit of the affected agency’s views, and in all probability the preemption issue was entitled to different treatment than it received ip the Florida courts at the time this case was decided. Bht what was then an arguable matter under § 14 (b) is not necessarily arguable now. In the first place, as we have, held in the General Motors case, an agency shop arrangement is the equivalent of a permitted § 8 (a) (3) membership agreement, a result which rules this case since, as we have indicated, § 14 (b) subjects to state law the membership agreements, or their equivalent, which are permitted by §8 (a)(3). Secondly, the Board’s brief in the General Motors case contained the Board’s own view of the status of the agency shop agreement under § 14 (b): the provision conditioning employment upon the payment of sums equal to initiation fees and monthly dues is within the § 8 (a)(3) proviso, within the scope of § 14 (b), and hence subject to invalidation by state law. What was an arguable question of § 8 (a) (3) and § 14 (b) coverage has been settled, not only in the light of, but consistently with, the views of the Board. We see no reason to hold our hand at this juncture in order that the Board may arrive again at what is now a foregone conclusion. Cf. Maritime Board v. Isbrandtsen Co., 356 U. S. 481.
The second question implicit in petitioners’ preemption argument is whether"'a state court may enjoin the operation of an agency shop arrangement which the State has declared to be unlawful as it may do under § 14 (b). Without the proviso to § 8 (a)(3) and a similar saving clause in § 7, conditioning employment upon union membership would be an obvious unfair labor practice, under §§ 8 (a)(1), 8 (a)(3), and 8 (b)(2), as Congress recognized in adding the proviso to original § 8 (3). With the proviso, however, such arrangements, if they comply with the terms of the proviso, are not unfair practices. Section 14 (b), with obvious reference to § 8 (a) (3), declares that “nothing in this Act” is to authorize “the execution or application” of membership agreements in States in which such execution or operation is prohibited by state law. It is one thing if § 14 (b) and a state law prohibiting the union or the agency shop have no impact on §§ 7 and 8 at all, and the union and agency shops are therefore not unfair practices under federal law even in those States which prohibit them. It is quite another matter, however, if § 14 (b) removes the protection of the § 8 (a) (3) proviso and the union and agency shops become unfair labor practices in States where state law forbids them, for then the obvious question is precipitated as to whether a State as well as the Board may enjoin' such union-security arrangements. The scope and vitality of the Court’s decision in Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301, are involved, as is the applicability of the preemption doctrine, subsequently developed in many cases in this Court, such as Garner v. Teamsters Union, 346 U. S. 485; San Diego Council v. Garmon, 359 U. S. 236, to situations where state law invalidates union-security contracts placed within their reach by § 14 (b).
We hold that § 14 (b) of the Act subjects this arrangement to state substantive law, and that the legality of Article 19 is governed by the decision of the Florida Supreme Court under review here. As to the unresolved issue of whether the Florida courts have jurisdiction to afford a remedy for violation of the state law, we prefer not to dispose of the matter without full, argument next Term. Moreover, since we have not had the benefit of the views of the National Labor Relations Board, the Solicitor General is invited to file a brief expressing the views of the Government. The case is retained on the calendar and set for reargument during the forthcoming Term on the remaining issue.
It is so ordered.
Mr. Justice Goldberg took no part in the consideration or decision of this case.
Article 45 provides:
“This Agreement shall continue in effect from April 18, 1960 to April 15, 1963, and continue in effect from year to year thereafter unless either party notifies the other party sixty (60) days prior to expiration date, or any anniversary date thereafter, of their desire to terminate' or open the agreement for the purpose of amendments and/or changes.”
“The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union, or labor organization; provided, that this clause shall not be construed to deny or abridge the right of employees by and through a labor organization or labor union to bargain collectively with their employer.”
"Provided, That nothing in this Act, or-in any other statute of the United States, shall-preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later
The petition for certiorari posed the question for review as whether § 14 (b) “authorizes the states both to'prohibit and to regulate an ‘agency shop’ clause.” The present clause was likened to, rather than distinguished from, the General Motors arrangement. It was only upon briefing and argument that petitioners sought to place this alleged “service fee” contract in a different category 'from the agency shop. Cf. National Licorice Co. v. Labor Board, 309 U. S. 350, 357, n. 2.
This is the factual posture in which the case comes to us, on motion to dismiss. The evidence on-this point, if any favorable to petitioners was adduced at the hearing for preliminary injunction, was not made part of the record.
“Rather typically, unions use their members’ dues to promote legislation which they regard as desirable and to defeat legislation which they regard as undesirable, to publish newspapers and magazines, to promote free labor institutions in other nations, to finance low cost housing, to aid victims of natural disaster, to support charities, to finance litigation, to provide scholarships, and to do those things which the members authorize the union to do in their interest and on their behalf.”
We cannot take seriously petitioners’ unsupported suggestion at the oral argument that we must assume that the union spends all of its income on collective bargaining expenses. The record is entirely silent on this matter one way or the other and it would be unique indeed if the union expended no funds for noncollective bargaining purposes. See Brief for N. L. R. B., Labor Board v. General Motors Corp., No. 404, p. 38. As indicated in the text, petitioners’ brief seems to concede as much and petitioners later appeared to modify or withdraw the suggestion at the oral argument. In any event, we have only the pleadings and we are bound to give the respondents the benefit of every reasonable inference from well-pleaded facts. Wheeldin v. Wheeler, 373 U. S. 647, 648; Kendall v. United States, 7 Wall. 113, 116; Rhode Island v. Massachusetts, 15 Pet. 233, 272.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
DOREY ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
No. 74-2181.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1975.
Decided April 14, 1977.
E. Kenneth Day, Norfolk, Va., Ira J. Smotherman, Jr., Atlanta, Ga. (Carole T. Frantz, Day & Summs, Norfolk, Va., on brief), for petitioner.
Michael H. Stein, Atty., U. S. Dept, of Justice, Washington, D. C., (Irving Jaffe, Acting Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., U. S. Dept, of Justice, William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Judith A. Burghardt, Washington, D. C., on brief), for respondent.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
PER CURIAM:
We deferred ruling on this petition for review until the Supreme Court decided whether an employer, who is charged with a violation of the Occupational Safety and Health Act that may subject him to civil penalties, is constitutionally entitled to a jury trial. In Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Commission, - U.S. -, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), the Court held that the Seventh Amendment posed no bar to the disposition of such charges and the imposition of civil penalties by an administrative tribunal. This decision controls the principal issue presented by the petitioner. We turn, therefore, to other issues it raised.
The citations against the petitioner, Dorey Electric Company, arose as a result of a routine inspection by an OSHA compliance officer who noted that employees of Dorey were working near open, unguarded edges of the fourth floor of an uncompleted apartment building. In addition, he found the worksite perimeter cluttered with piles of foam and scrap lumber which exposed Dorey’s employees to possible injury. The evidence presented at the administrative hearing was based primarily on the compliance officer’s inspection and a stipulation that the edges of the floors in question were unguarded.
Dorey contends that the inspection of the worksite was without permission, violating its Fourth Amendment right against unreasonable searches. Therefore, according to Dorey, the testimony of the compliance officer must be excluded, and the complaint dismissed for lack of evidence.
The record discloses, however, that, at a worksite conference, Dorey gave permission for the inspection through its foreman. We conclude, therefore, that the testimony of the compliance officer was properly admitted.
Dorey also contends that the Commission failed to show that the absence of guardrails constitutes a “serious offense” under 29 U.S.C. § 666(j). That section provides:
[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition, which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, or could not with the exercise of reasonable diligence, know of the presence of the violation.
Dorey claims that the probability of falling, being statistically available, must be shown before the violation may be deemed “serious.” This contention was expressly rejected in National Realty & Construction Co., Inc. v. Occupational Safety & Health Review Commission, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265 n. 33 (1973), in which the court stated that no such mathematical test need be conducted. “If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission’s expert determination of likelihood should [control].” Here, we think it reasonable for the Commission to conclude that the absence of guardrails could result in serious injury; thus, the violation is of a serious nature under 29 U.S.C. § 666(j).
Dorey next argues that, even if this court were to accept the Commission’s findings that it violated the safety standards, enforcement should be denied because standard guardrails would have rendered performance of the work “difficult if not impossible.” In addition, Dorey asserts that the guardrails, when removed, would have damaged the completed work. The petitioner points out that the Commission itself has held that noncompliance with a safety standard is justified when necessary to perform required work. Secretary v. Dic-Underhill, 7 OSAHRC Rep. 134 (1974); Secretary v. Masonry, Inc., 5 OSAHRC Rep. 524 (1973); Secretary v. La Salla Contracting Co., Inc., 2 OSAHRC Rep. 976 (1973).
Despite these claims by Dorey that it was impossible for it to comply with the guardrail standard, the administrative law judge concluded that “[o]ther guards equivalent to standard railing such as pipe and wire rope could have been used to guard the edge of the opensided fourth floor which would not have obstructed, damaged, or otherwise prevented installation of said electrical switches and/or conduits by Dorey’s employees.” This finding is supported by the testimony at the hearing, and we conclude that, because Dorey failed to establish the impossibility of compliance, the penalties should be enforced.
Affirmed.
The Commission’s decision is reported as Secretary v. Dorey Electric Co., 11 OSAHRC Rep. 227 (1974).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_genresp2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
Ronald ADCOCK, et al., Plaintiffs-Appellants, Cross Appellees, v. The FIRESTONE TIRE AND RUBBER COMPANY, et al., Defendants-Appellees, Cross Appellants.
Nos. 85-6031, 85-6067.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 3, 1987.
Decided June 26, 1987.
John L. Van Cleave, argued, Robert E. Hoehn, Watkins, McGugin, McNeilly, Rowan, Nashville, Tenn., Lowe Watkins, for plaintiffs-appellants, cross-appellees.
William N. Ozier, argued, Bass, Berry and Sims, Nashville, Tenn., for defendantsappellees, cross-appellants.
Before LIVELY, Chief Judge; RYAN, Circuit Judge; and JOINER, District Judge.
The Honorable Charles W. Joiner, Senior Judge, United States District Court for the Eastern District of Michigan, sitting by designation.
JOINER, Senior District Judge.
Plaintiffs are non-union salaried employees who worked in defendants’ LaVergne, Tennessee tire plant (“the plant”) at the time of the plant’s sale to Bridgestone Tire and Rubber Company (“Bridgestone”). Plaintiffs brought this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., to recover, on account of the sale, reduction in force (“RIF”) termination pay under defendants’ termination pay plan. The district court granted defendants’ motion for summary judgment based on the ground that defendants’ determination that no RIF occurred upon the sale which would entitle plaintiffs to benefits was not arbitrary or capricious, 616 F.Supp. 409 (D.C.Tenn. 1985). Plaintiff appeals from this determination. The district court also held that defendants may become responsible for future benefits should Bridgestone terminate any plaintiff under circumstances that would constitute a RIF under the plan. Defendants cross-appeal from this decision.
I.
Firestone’s company-wide termination pay policy was set forth in its Salaried Personnel Manual (“SPM”) and Handbook for Salaried Employees (“the Handbook”). The SPM is a comprehensive and confidential document that was distributed only to personnel managers and senior executives, though relevant portions were made available to employees upon request. The Handbook was distributed to all salaried employees. The Handbook stated the employees were entitled to termination pay if they were released from the company because of a RIF. The SPM described a RIF as a termination when “necessary to eliminate a position because of reduced workload or due to economic necessity.” According to the SPM, the goal of this termination pay was to minimize “the economic and mental stress of terminated employees ... between release from Firestone and securing other employment.”
Defendants interpreted this plan to mean that if a plant was sold as an ongoing concern, no benefits would be paid. On the other hand, if a plant was not sold as such, and even if the purchaser eventually did decide to hire employees back, benefits would still be paid. Defendants explained that this “presumption of unemployment” was less expensive than the alternative of investigating each employee to see if they had been re-employed, and did not cause as much ill will with employees. Consistent with this policy, Firestone sold two plants (in Conover, North Carolina, and Arlington, Texas) not as ongoing concerns, and in each case RIF benefits were paid. Similarly, in a sale of a plant in Romeo, Michigan, only one-half of the employees could be guaranteed jobs with the purchaser, and the other one-half received RIF benefits. The only aberration dealt with the sale of the Newport, Tennessee, Firestone plant as an ongoing concern, where a one-time Service Recognition Award was paid to all employees. According to defendants, this was done to compensate the employees for the fact that the purchaser provided few benefits, and had no pension plan.
The terms of the LaVergne sale were spelled out in a seventy-five page agreement that dealt with the transfer of the plant and the continuing employment of the plant employees. The agreement explicitly stated that Firestone would not terminate any employees before the sale, and Bridge-stone would employ every plant employee. In order to meet its commitment of maintaining the plant work force, Firestone adopted a policy of not permitting transfers of plant employees to other Firestone locations. In addition, due to its interpretation of its termination pay plan as described above, employees who accepted employment with Bridgestone did not receive severance pay due to a lack of unemployment, while those who chose not to accept such employment were treated as having resigned, and would therefore be ineligible for severance pay. Pursuant to this agreement, the plant was sold as an ongoing concern on January 10, 1983, for $55,-000,000.
Plaintiffs filed the present case on January 12, 1983, alleging that defendants’ interpretation of the termination pay plan was arbitrary and capricious, and was therefore in violation of ERISA. After the filing of cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56(b), the district court granted defendants’ motion on August 6, 1985. The district court began by noting that the SPM would not be heavily relied on, as its contents had not been communicated to the employees in accordance with the dictates of ERISA. In a similar vein, the district court noted that, by defendants’ own admission, Firestone had not complied with the disclosure requirements of ERISA with regard to the termination pay plan in general, but that this noncompliance was not so severe or intentional as to constitute arbitrary and capricious conduct on defendant’s part.
The district court then turned to the language of ERISA, and observed that ERISA did not provide for the vesting of employee welfare benefit plans, and that this “silence” constituted a “gap” which had to be filled by federal common law. The district court determined that plaintiffs had a binding contractual right to termination pay, with the offer being the description of the plan in the Handbook, and the acceptance being plaintiffs continuing to work for Firestone. As such, the district court concluded that plaintiffs’ entitlement to these benefits was vested, and that if Bridge-stone terminated any plaintiff in the future under circumstances that constituted a RIF under the plan, defendants would be responsible for benefits. However, the court also concluded that given defendants’ past practices, it was not improper for them to deny benefit payments at the time of the plant sale, as plaintiffs were not yet unemployed, therefore no RIF had occurred.
II.
On appeal, plaintiffs contend that defendants’ interpretation of the termination pay plan is arbitrary and capricious for two major reasons. First, plaintiffs argue that defendants’ construction of the plan has not been uniform, and the distinction defendants make between ongoing and non-ongoing concern sales is merely a “smoke screen” for inconsistency, as is demonstrated by the Newport sale. Second, plaintiffs contend that defendants have read in unemployment as a prerequisite for benefits, yet no such requirement can be found in the wording of the plan. As a result, plaintiffs argue that defendants’ approach is not consistent with a fair reading of the termination pay plan. Defendants respond that unemployment as a prerequisite is a reasonable interpretation, as the stated policy behind the plan is to decrease the trauma of unemployment. Defendants also argue that this interpretation is consistent with past readings of the plan, specifically pointing to the Conover and Arlington plant sales.
The district court granted summary judgment pursuant to Fed.R.Civ.P. 56(b) and will be affirmed only if it is determined that the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party. Matsushita Electric Industries Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In this context, all inferences from the facts must be viewed in a light most favorable to the non-moving party. Id. However, the movant need not present evidence to negate every aspect of the non-movant’s claim, they need only support their own claim that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In reviewing the decisions of plan administrators under ERISA; the appropriate standard of review is whether the decision was arbitrary, capricious, or in bad faith. Rhoton v. Central States Pension Fund, 717 F.2d 988, 989 (6th Cir.1983); Blakeman v. Mead Containers, 779 F.2d 1146, 1149 (6th Cir.1985); Cook v. Pension Plan For Salaried Employees, 801 F.2d 865, 870 (6th Cir.1986). While plaintiffs argue for more of a de novo standard, this approach has been rejected in favor of the arbitrary or capricious standard, which adequately protects the interests of employees with respect to employment benefits covered by ERISA. See Crews v. Central States Pension Fund, 788 F.2d 332, 336 (6th Cir.1986).
A reading of past cases dealing with similarly-worded termination pay plans reveals that courts have come out both ways on the issue of whether unemployment is a prerequisite for termination pay, with an important factor often being how the employer had interpreted the plan at issue in the past. In the instant case, an examination of Firestone’s past interpretation and application of the plan indicates that their present interpretation is consistent. An analysis of the Conover, Arlington, and Romeo plant sales demonstrates that regardless of whether a particular employee is employed by the plant purchaser or not, no termination benefits are paid when a plant is not sold as an ongoing concern. The only exception to this approach seems to be the Newport sale, but this court agrees with the district court that the Newport sale was a special case, and that the circumstances which lead to an exception being made are not present here. Consequently, based on consistency of interpretation, it cannot be said that defendants’ interpretation of the plan in this instance was arbitrary or capricious.
Defendants’ interpretation of the termination pay plan is also consistent with a fair reading of the plan, which as recognized by plaintiffs, is always an important consideration when judging the actions of an administrator of an ERISA plan. Blau v. Del Monte Corp., supra, 1354; Blakeman v. Mead Containers, supra, 1150. In analyzing plans such as the one at issue, courts have often held that unemployment should be a prerequisite for benefits, as severance pay is generally intended to tide an employee over while seeking a new job, and should be considered more of an unemployment benefit. Sly v. PR Mallory & Co. Inc., supra, 1211; Jung v. FMC, supra, 713; Holland v. Burlington Ind., Inc., supra, 1149. This is certainly appropriate in the instant case, as the SPM states that the goal of the plan is to reduce the stress of terminated employees between the time of their release and securing other employment. This court believes that it is a fair reading of the plan to require unemployment as a prerequisite to finding that a RIF occurred which justifies the payment of termination pay.
Accordingly, because there is no question that a RIF did not occur in this case, the district court was correct in holding that defendants’ interpretation and application of the plan to plaintiffs was not arbitrary or capricious.
III.
In their cross-appeal, defendants argue that the district court erred in holding that plaintiffs’ entitlement to termination pay was vested under ERISA. Initially, defendants claim that the fact that ERISA specifically provides for the vesting of pension benefits, but not for employee welfare benefit plans, is an intentional omission which indicates that Congress did not intend for such plans to be vested. It is not a gap, they argue, that requires federal common law interpretation. Defendants then go on to argue that the analysis of the district court that the gap should be filled by a contract analysis has been recently rejected by this court in In re White Farm Equipment Co., 788 F.2d 1186 (6th Cir. 1986). Plaintiffs take the same position the district court did, arguing that the contract approach is appropriate, and that the termination pay plan is the result of a bargained-for exchange.
This court will not address this issue, as it is not properly before us, nor was it properly before the district court. The jurisdiction of federal courts is limited by Article III of the United States Constitution to consideration of actual cases and controversies, therefore federal courts are not permitted to render advisory opinions. Princeton University v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 868, 70 L.Ed.2d 855 (1982); Big Rivers Electric Corp. v. Environmental Protection Agency, 523 F.2d 16, 19 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). The vesting question was not mentioned in the complaint, nor by any party in a motion for summary judgment, and was therefore never before the district court. As such, there was no actual vesting case or controversy for the district court to rule on, so the district court rendered an advisory opinion. This action was clearly improper, and must be vacated.
IY.
The decision of the district court granting defendants’ motion for summary judgment is AFFIRMED except for that part which holds that plaintiffs’ entitlement to termination pay is vested. As to that part of the district court’s decision, it is VACATED.
RYAN, Circuit Judge, concurs in the result and the court’s judgment.
. The plan is funded entirely by Firestone, and applies to non-union employees. Union employees subject to collective bargaining agreements have separate termination pay rights under those agreements.
. A sale as an ongoing concern is where there is a contractual agreement that all employees of the seller will be employed by the purchaser.
. The denial of severance benefits at the plant saved Firestone approximately $2,500,000.
. The plant employees left work on Friday working for Firestone, and when they returned to work on the following Monday, they were working for Bridgestone. In the two years following the sale, only two former Firestone employees had been terminated, and both were terminated for cause.
. The district court concluded that the termination pay plan constituted an employee welfare benefit plan for the purposes of ERISA, and this conclusion is not disputed on appeal.
. According to the district court, defendants would be responsible for benefits accrued up to the date of the plant sale to Bridgestone.
. The district court distinguished the Newport sale, stating that while Bridgestone did not offer termination pay, the benefits it did offer were comparable to those offered by Firestone, and were much better than those offered by the purchaser in the Newport case.
. For cases holding that unemployment is a prerequisite to entitlement to termination pay, see, Sly v. PR Mallory & Co., Inc., 712 F.2d 1209, 1213 (7th Cir.1983); Jung v. FMC, 755 F.2d 708, 713 (9th Cir.1985); Holland v. Burlington Ind., Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff’d, - U.S. -, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Blakeman v. Mead Containers, supra, 1151. For cases reaching an opposite conclusion, see Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Anderson v. CIBA-Geigy Corp., 759 F.2d 1518, 1521 (11th Cir.1985), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987).
. This is not to say that an employer may not, if it so desires, provide severance pay without the presence of unemployment, as Firestone does with employees at plants not sold as ongoing concerns. If such an approach is taken, the main concern will then be that the approach is consistently followed in similar cases, and as the above discussion indicates, that consistency is present here.
. Plaintiffs argue that this court should not rely on the SPM for any analysis, because it was not properly disseminated to Firestone employees. While it is true that the SPM was not appropriately distributed to all employees, it would be elevating form over substance not to consider the clear intent of the termination pay plan as expressed in the SPM.
. Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987), submitted by plaintiffs after the instant case was argued, is distinguishable. First, unlike the instant plan language, the severance pay plan language in Harris more strongly suggested that unemployment was not a prerequisite to termination pay. 809 F.2d at 1498, 1499. Second, in Harris the plan administrator’s interpretation of the severance pay plan was not consistent with its past practices, 809 F.2d at 1499, while here, defendants have consistently interpreted the plan.
. See 29 U.S.C. § 1051(1); McBarron v. S & T Industries, 771 F.2d 94, 97 (6th Cir.1985).
. If this court reviewed the district court’s decision, it is likely that it would be reversed in light of In re White Farm Equipment Co., 788 F.2d 1186, 1192-1192 (6th Cir.1986), which rejects the district court’s contract analysis.
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_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.
R. M. SMITH, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE.
No. 78-1442.
United States Court of Appeals, Third Circuit.
Argued Nov. 14, 1978.
Decided Jan. 26, 1979.
Kenneth P. Simon, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.
M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Jonathan S. Cohen, Richard D. Buik, Attys., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
Before ROSENN, GARTH and HIGGIN-BOTHAM, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The issues raised on this appeal reflect some of the subtle tax hazards lurking in corporate liquidations. The issues turn on the application of section 334(b)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 334(b)(2) (1976), dealing with the basis of property received in liquidation of a subsidiary. Section 334(b)(2) provides that “[i]f property is received by a corporation in a distribution in complete liquidation of another corporation,” and if certain requirements are met, “then the basis of the property in the hands of the distributee shall be the adjusted basis of the stock with respect to which the distribution was made.” Basis in the assets is to be allocated in proportion to the fair market values of the assets. 26 C.F.R. 1.334 — l(c)(4)(viii) (1978). In this case, both parties agree that the prerequisites to the applicability of section 334(b)(2) have been met. The dispute hinges on the proper allocation of basis to the property transferred.
I. THE PREDICATE FOR ASSET BASIS
In early 1970, R. A. Gilmour and Robert M. Smith entered into an agreement for the sale of all assets of the Gilmour Company, a manufacturer of lawn and garden equipment, to R. M. Smith, Inc. (“Smith”). At the request of Gilmour, the transaction was changed to a sale of all Gilmour Company stock for a total price of $3,780,550. The agreement did not include identification of the individual values of the assets being transferred. Payment for the stock was as follows: cash in the amount of $780,550; a promissory note for $300,000 at 71/2 percent; and an installment note for $2,700,000 at 4 percent. Smith also assumed existing liabilities of Gilmour Company which, by the time of liquidation, totalled $272,180.93. Although the transfer was effective as of February 1, 1970, the transaction was not consummated until March 24,1970. Within a week, Gilmour Co. was liquidated with Smith retaining the assets. After the liquidation, Smith continued to use the trade names, trademarks, and customer lists of Gilmour Company.
Pursuant to section 334(b)(2) and the underlying Treasury regulations, Smith allocated the refined adjusted basis in the stock to the assets received upon liquidation. Included in this allocation was $1,833,392.53 assigned to depreciable intangible assets, namely six patents and an unpatented invention. No allocation was made to nondepreciable intangible assets (e. g., goodwill) which Smith regarded as having no fair market value. In subsequent tax returns, Smith claimed deductions for the amortization of the patents and invention based on the amount assigned.
In reviewing Smith’s tax return the Internal Revenue Service (“IRS”) concluded that only one patent had any basis and that amounted to $10,000. Thus, the Commissioner viewed the amortization deductions as excessive and issued a notice of deficiency. Smith petitioned the tax court for review of this determination.
The primary issue at trial was the fair market value of the patents and the invention. Each side presented an expert witness who employed the identical method of computing the values but used different variables resulting in substantially differing figures of values. The tax court determined that although the identical method employed by the experts was appropriate, each had either overestimated or underestimated certain variables. The tax court fixed the correct valuation at $860,000, a sum between the figures proposed by the witnesses.
The tax court proceeded to find that Smith had failed to assign basis to nondepreciable intangible assets — goodwill, trademark, trade name, and customer lists. The court determined that the value of these intangible assets must be equal to the total purchase price of the stock less the sum of the known values of all other assets. This is based on the assumption that the best evidence of the fair market value of all of the assets is the total price paid for the stock. The court thus determined that the goodwill was worth $1,225,697.41. No attempt was made to fix specific values to the individual components of this total as all are nondepreciable.
The net effect of the court’s holdings is that approximately $1.23 million in basis previously assigned to depreciable intangible assets are now assigned to nondepreciable assets, resulting in a reduction in allowable depreciation and amortization deductions.
On appeal, Smith challenges the tax court determinations of the values of the patents and of the nondepreciable intangibles. We affirm.
II. PATENTS AND INVENTION
In support of its assessment of the fair market value of the patents and invention, Smith presented two witnesses qualified to address this issue. Smith’s president adopted a method of calculating this figure which the court found “wholly unacceptable” and refused to give weight to the testimony. However, the other witness, a financial appraiser, utilized an approach which the court found appropriate. His analysis yielded an aggregate fair market value for the six patents of $1,867,000.
The Commissioner presented one expert witness, a patent lawyer. The witness employed the same method as Smith’s expert, but his gross value for the patents was only $424,647.
The court found that correct valuation of the patents lay in between the two figures presented by the experts. Specifically, it found the royalty rates and projections of future sales used by Smith’s expert to be overly optimistic and those variables applied by the IRS expert to be unduly pessimistic. The judge concluded:
After giving careful consideration to testimony received, the valuation reports submitted, and the parties’ arguments on brief, we have done the best we could to make a reasonable determination of the fair market value of the patents . . ., and, using the same approach used by [both experts], have computed an aggregate amount of $745,000 ....
The court also found the unpatented invention to have a value of $115,000. Smith’s expert set the figure at $130,000, as opposed to $10,000 by the IRS expert. (The value of this asset is not an issue on appeal.) Thus, the total value of the depreciable intangible assets was determined by the tax court to be $860,000.
Smith’s contention on appeal attacks the appropriateness of the tax court assigning this value to the patents. Smith states that it had the burden of proving that the Commissioner’s determination of the gross values, which initially amounted to $10,000, was arbitrary. Having established that the calculation was in error, Smith was not required to prove the correct figure. The Commissioner had the burden of establishing the proper valuation and thus the actual tax owed. This much is an accurate statement of the law. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 106, 79 L.Ed. 623 (1935); Federal National Bank v. Commissioner of Internal Revenue, 180 F.2d 494, 497 (10th Cir. 1950).
Where Smith’s argument fails is in suggesting that the refusal of the tax court to accept the Commissioner’s evidence requires this court to reverse the trial judge with instructions to expunge the deficiencies. The teaching of Helvering v. Taylor, supra, and Federal National Bank v. Commissioner of Internal Revenue, supra, is that the appropriate remedy in the absence of evidence of proper valuation is a remand to allow for additional evidence to be presented. In this case, however, sufficient evidence was introduced to allow the tax court to reach a reasonable conclusion. The court is not limited to simply choosing one of the two values proffered. It is appropriate for it to evaluate all of the evidence and to make an independent determination that does not necessarily accept the valuation of either party. This is not the first time the tax court has used this approach. See Philadelphia Steel & Iron Corp. v. Commissioner, 23 T.C.M. 558, 564-65 (1964), aff’d per curiam, 344 F.2d 964 (3d Cir. 1965). The court’s finding of fact with respect to valuation is to be reviewed under the clearly erroneous standard, Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), and in this case must be sustained.
III. NONDEPRECIABLE INTANGIBLE ASSETS
A. Is the Residual Value Method Appropriate for Determining the. Value of Goodwill in this Case?
According to Treasury Regulation 1.334-l(c)(4)(viii) (1978), the allocation of taxable basis to the assets received in a section 334(b)(2) transaction shall be made in proportion to the fair market value of the assets. Thus, before basis is allocated, a determination of fair market value of all of the assets must be made. Having found that Smith received assets not listed on its balance sheet (goodwill, trademark, trade name, and customer lists), the tax court proceeded to assess their worth.
Rather than attempting an independent appraisal of these intangible assets, the court held that their value could be ascertained by the residual valuation method. Simply put, this method assumes that the sum of the fair market values of all assets acquired equals the price paid for the acquisition of these assets. The formula is the price paid minus known values of assets equals unknown values of the remaining assets. Because the only assets without known values are the nondepreciable intangible assets, this formula can be applied readily to this case and yield the following results:
total consideration paid
(price plus liabilities assumed) $4,052,730.93
less known fair market values of assets
(as of date of liquidation) - 2,827,033.52
fair market value of intangible assets $1,225,697.41
The tax court also found that the evidence justifies allocating this sum to nondepreciable intangibles. Upon liquidation, Smith received an ongoing business that had been profitable for a number of years. It inherited a sound marketing program established in North and South America. It continued to use Gilmour Co.’s trade names which the tax court found were “well and favorably known to the users of lawn and garden equipment and promoted sales of these products.”
Smith challenges the appropriateness of the utilization of the residual value method to the facts of this case. Smith presents basically two arguments in support of its contention.
First, Smith points out that two months elapsed between acquisition of the stock and liquidation of the corporation. During this time the value of the assets had to change as a result, for example, of normal appreciation and depreciation. If the value of the tangible assets decreased, then, by applying the residual value method (using total price paid on February 1 and the fair market value of assets on March 31), the assigned value to goodwill would be greater (and vice versa), even though the value of goodwill should remain constant. Although the argument is logically sound, the determination of fair market value, as a practical matter, is not an act of precision but only a matter of approximation. Minor fluctuations in asset values during the two months would be insignificant. Although proof of substantial variations would require adjustments in the resulting goodwill figure, this is not a sufficient reason for altogether abandoning the residual value method. In any event, no such proof was presented in this case.
Appellant’s second argument is that the tax court permitted “the Commissioner to introduce as new matter residuary value goodwill after the record was closed” and, as a result, Smith was denied an opportunity to present testimony concerning goodwill. If true, this claim is significant.
As pointed out earlier, the theoretical underpinning of the residual value method is that the total price paid for the stock equals the sum of the fair market values of all of the underlying assets. Although this is a sound principle in economic theory, in reality it has its shortcomings. Specifically, it fails to take into account the common situation when one party to the transaction achieves a bargain. If the purchaser of the stock obtains a “good deal,” then the residual value method would undervalue the goodwill. If, on the other hand, the price paid is too high, then the computation will result in a correspondingly inflated goodwill figure. This problem does not require rejection of the residual value method — price paid is strongly probative, albeit not conclusive, of fair market value. However, it does suggest that the court consider evidence which would require alterations in the figure or abandonment of the formula altogether.
The cases applying the residual value method recognize this limitation. In Jack Daniel Distillery v. United States, 379 F.2d 569, 180 Ct.Cl. 308 (1967), the parties to the sale of stock had agreed to a value for goodwill after actively bargaining in good faith and settling on the value of the other assets. The court rejected an alternative computation for goodwill advocated by the IRS and used the residual method to confirm the figure agreed to by the parties. “The residuary method, though lacking in precision for use in all cases, may in a proper case be accepted as the reasonable way to value goodwill.” Id. at 579.
In Moss American, Inc. v. Commissioner, 33 T.C.M. 1121 (1974), the question was whether the price of the stock was equal to the fair market value of the underlying assets. The IRS argued that the aggregated fair market values exceeded the price by $12.5 million. However, the court concluded that the Commissioner’s evidence was insufficient to treat the purchase of stock as a bargain purchase. “If such a purchase had, in fact, occurred, we would, of course, be faced with a different question and respondent’s position would have merit.” Id. at 1127-28.
In Plantation Patterns, Inc. v. Commissioner, 29 T.C.M. 817 (1970), aff’d 462 F.2d 712 (5th Cir. 1972), and Philadelphia Steel & Iron Corp. v. Commissioner, supra, as in the cases above, the court allowed evidence demonstrating the inappropriateness of the residual method to be presented. Only after deciding that the evidence was unpersuasive did the court determine the value of goodwill by this formula. See also 10 Mertens, Law of Federal Income Taxation § 59.37 (residual method of valuing goodwill “should be followed with caution and in most cases the value of the goodwill should be supported by other collateral evidence”).
The rule to be drawn from these cases is that the residual value method is an appropriate means for deriving the value of intangible assets as long as the total price paid and the values of all other assets are known. The resultant figure, however, is not to be deemed conclusive proof of the unknown value. Evidence suggesting that a fair deal was not reached should be permitted. When appropriate, adjustments should be made in the value assigned to the intangible assets, or a different basis for deriving the figure should be substituted. Collateral evidence supporting a goodwill valuation by the residual method also should be received.
It is evident that in this case the tax court found support for its conclusion that the residual method was appropriate. It considered carefully the evidence which proved that intangible assets of substantial value had been received by Smith upon liquidation. If, however, the court precluded Smith from presenting contrary evidence to show that the price paid was not equal to fair market value, then it committed error. Despite its protestations, our review of the record leads us to the conclusion that Smith did have the opportunity to present such evidence. At trial, Smith argued that any intangible assets received upon liquidation were of nominal value only. The tax court stated in its opinion:
And, although, petitioner steadfastly maintains that we should sustain its asserted valuation of the patents and invention, petitioner belatedly argued that if we should decide that the fair market values of the patents and invention were of lesser amounts than petitioner has claimed, nevertheless, the value of the trademark and goodwill should not be determined under the residual method. Rather, petitioner urges, as best we can understand it, that a specific determination of the fair market value of the trademark and goodwill must be made . (Emphasis supplied.)
Thus, it appears that Smith anticipated the possibility that the court might find value for goodwill and it should have presented evidence on this point at trial.
B. Did the Tax Court Calculate the Residua] Value Goodwill Correctly?
Smith argues that the tax court erred in the starting point for the residual method— the price paid for the stock. The form of payment for the stock was as follows:
1. $780,550 cash;
2. $300,000 promissory note at l}h percent for 3 years;
3. $2,700,000 installment note at 4 percent with no principal payments during first three years;
4. $272,180.92 liabilities assumed.
Smith contends that in determining the price paid, the $2,700,000 note should not have been assigned face value, but that it should have been discounted at its market value, $1,990,943. If this argument is accepted, then the resultant value of the intangible assets would be lower. This would mean that there would be a greater allocation of basis to the depreciable assets, and, thus, greater depreciation deductions. Smith, however, fails to discern the adjustment that then must be made to the $2,700,000 note when calculating the basis in the stock. If the adjustment is made in both places, then the net effect would be nil.
It appears that the difference of over $700,000 between the face value of the note and its asserted market value results from a decision by Smith and Gilmour to incorporate this economic or unstated interest into the principal part of the installment note. If the face value of the note did reflect its market value and the note carried a market rate of interest, then the $700,000 would have been included in interest payments on the note and would have been deductible by Smith. Of course, an equal amount would have to be treated as ordinary income by R. A. Gilmour. By including the sum in the principal portion of the note, the $700,000 becomes a capital gain to Gilmour. The question involving Smith’s tax return is whether this amount should be allocated to basis spread among all of the assets received in liquidation allowing Smith to depreciate much of it, or whether it should be assigned to goodwill, a nondepreciable asset. We believe including it in goodwill is the appropriate result in this case.
Our independent research has failed to uncover a case which addresses the issue: under the residual method, in calculating the total purchase price for capital stock partially paid by a promissory note, should adjustments be made to the face value of the note when it is apparent from the low interest rate on the obligation that the face value does not equal the market value? The argument in favor of adjustment has intuitive appeal in that greater precision is being used to derive the fair market value of the unknown. However, the effect desired by the taxpayer (increase in bases of depreciable assets) only comes about because less precision is demanded in calculating the basis in the stock. The Internal Revenue Code, 26 U.S.C. § 483 (1976), and the underlying regulations, 26 C.F.R. §§ 483.1-483.2 (1978), require that the treatment of notes for tax purposes be adjusted for unstated interest when the rate assigned is less than four percent. Because the interest rate of the note in question is four percent, no adjustment is required; nor do we believe one is necessary. We hold that both calculations should be made at face value. See Commissioner of Internal Revenue v. Danielson, 378 F.2d 771 (3d Cir. 1967). Thus, the tax court did not err.
The final contention made by Smith is that the tax court erroneously included in the total price paid for the stock the federal income tax liability ($59,766) of the acquired Gilmour Co. for the period between acquisition of the stock and liquidation of the corporation. By application of the residual value method, the increase in the price paid results in an increase in the value assigned to goodwill (see formula, supra at 252). As noted earlier, an increase in the amount treated as goodwill results in a lower allocation of basis to depreciable assets. Because the tax court was attempting to derive the value of goodwill as of the date of acquisition, the inclusion of the subsequent tax liability in total price paid is inappropriate. The interim income tax liability in no way would increase the value of goodwill at the time of acquisition.
Reversal is unnecessary, however, because the tax court also erred in deducting from the total price paid the interim earnings of the Gilmour Co. ($109,700). The interim earnings flowed into the company after acquisition and became part of the value of the assets known (the subtrahend in the residual value formula). Increasing the subtrahend resulted in a reduction of the value assigned to goodwill. The events transpiring during the interim period could not have altered the value of goodwill as of the date of acquisition and again should not have been included in applying the residual value formula. The amount of interim earnings exceeded the interim income tax liability and more than offset the error claimed by the taxpayer. The IRS has not appealed this error in favor of the taxpayer, and thus, the tax court’s judgment need not be disturbed.
IV. CONCLUSION
We perceive no reversible error by the tax court and its decision will be affirmed. Costs to be taxed against the appellant.
. “Refined adjusted basis” is a term adopted by the tax court referring to basis that has gone through two adjustments.
. Prior to trial the parties agreed to the fair market value of all the tangible assets received by Smith upon liquidation.
. The president of Smith, Robert M. Smith, also testified on this issue; however, his testimony was discredited by the trial judge.
. The Commissioner abandoned his original position that the total value of these assets was $10,000.
. It seems incongruous for the court to approve as large a sum as $1,225,697.41 for the goodwill of a manufacturing concern whose gross revenue only approximates $2,000,000 per annum. This allocation, however, was the direct result of the amount fixed in the installment note by the parties to the sale and purchase. Smith’s president was a practicing accountant fully familiar with the affairs of the Gilmour Company, having been its accountant. He should have recognized the possibility that this result might flow from the agreement. When the parties themselves have deliberately fixed the values to be placed on the elements of a transaction, they are bound to accept the Commissioner’s construction of these values, unless they can prove mistake, undue influence, fraud, or duress. Commissioner of Internal Revenue v. Danielson, 378 F.2d 771, 775 (3d Cir. 1967).
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_initiate
|
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.
Robert L. TYSON, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 710 PENSION FUND, Defendant-Appellee.
No. 86-1859.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 8, 1986.
Decided Feb. 12, 1987.
Stephen B. Horwitz, Burns, Sugarman & Orlove, Chicago, 111., for plaintiff-appellant.
Stephen Feinberg, Asher, Gittler & Greenfield, Ltd., Chicago, 111., for defendant-appellee.
Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
POSNER, Circuit Judge.
This ERISA suit against a union pension fund seeks benefits under a pension plan. See 29 U.S.C. § 1132(a)(1)(B). The plaintiff, Robert Tyson, is a former truck driver for Charles Levy & Co. He claims to be entitled to a disability pension under the pension plan established by the collective bargaining agreement between his union (a teamsters local) and Levy. The district court granted summary judgment for the pension fund on the ground that awarding the pension would violate the Taft-Hartley Act.
On February 6, 1981, Tyson suffered a totally and permanently disabling injury in an auto accident. The pension plan entitles an employee who becomes totally and permanently disabled to a disability pension, beginning immediately, if he has worked either for 15 complete years or for 14 complete years plus a total of 35 weeks in the first and last year that he was employed. Otherwise he must wait till he reaches age 65 to realize any vested pension rights. Tyson had worked 14 complete years plus 18 weeks his first year and he therefore needed 17 weeks in his last year, 1981, to qualify for the pension. Although disabled after working only 6 weeks in 1981, he was credited for that year with an additional 8 weeks of accrued vacation and disability pay (the collective bargaining agreement requires the employer to pay the employee for 4 weeks after a disabling injury), making a total of 32 weeks in his first and last years (18 + 6 + 8) — which was 3 weeks short. In January 1982, almost a year after Tyson had stopped working for Levy, Levy paid him 4 weeks of additional wages in recognition of his long years of service for Levy and the fact that his employment had been cut short by the accident. Tyson wants to add those 4 weeks to his other 1981 credits. If he succeeds, he will be entitled to the disability pension.
The district court thought that the addition of the 4 weeks to Tyson’s 1981 credits was blocked by section 302 of the Taft-Hartley Act, 29 U.S.C. § 186, which makes it unlawful for an employer to pay a union or other representative of its employees — which the pension fund is conceded to be. There is an exception for union pension and welfare funds but it is subject to various limitations, of which the one pertinent here is that “the detailed basis on which such payments are to be made [by the employer to the fund] is specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). The district judge thought this proviso not satisfied here. En route to this conclusion he expressed skepticism about most of the fund’s contractual arguments, but the focus of his decision was the fund’s statutory ground, and we regard the contractual issues as still open; Tyson conceded as much at the oral argument of the appeal.
Article 29 of the collective bargaining agreement, captioned “Pension Plan,” requires the employer to contribute to the union’s pension fund a fixed amount per week for each employee covered by the agreement who has been on the employer’s payroll for at least 30 days. It also authorizes the making of “appropriate trust agreements necessary for the administration of such fund.” Levy never made a contribution for the additional 4 weeks that Tyson wants credited to 1981, but the fund admits it would have refused to accept it, on the ground that accepting it would violate the statute; and the parties appear to assume that if the fund would accept the contribution, Levy would make it. The fund’s position (and hence the district court’s decision) is correct if “the detailed basis” for such a contribution is not “specified in a written agreement with the employer.”
It is not specified in the collective bargaining agreement itself. But section 1.25 of the trust agreement that sets forth the details of administration provides:
Each Employee will be credited with an Hour of Work for:
(a) Each hour for which an Employee is paid, or entitled to payment by an Employer for duties performed____
(b) Each hour, up to a maximum of 501 hours, for which an Employee is directly or indirectly paid or entitled to payment by the Employer for reasons (such as vacation, holiday, illness, incapacity, including disability, layoff, jury duty, military duty or leave of absence) other than the performance of duties (irrespective of whether the employment relationship has terminated)____
This section makes clear that an employee such as Tyson is entitled to pension credit for certain hours that he does not actually work, even if, as here, he is paid for those hours after he has ceased to be employed. If the 4 weeks for which he was paid in 1982 are added to the 8 weeks for which he received vacation and disability pay in 1981 and which the fund does not contest, the total (12 weeks = 480 hours) is below the 501-hour ceiling.
The pension fund argues that section 1.25 was not meant to embrace “gifts,” but there are two answers to this. The first is that the provision does not in terms exclude gifts; at least the words do not compel such a reading. The expression “for reasons ... other than the performance of duties” does not appear to require nonaltruistic “reasons”; the reasons listed between the parentheses are illustrative rather than exhaustive. Furthermore, to describe the 1982 payment to Tyson as a “gift” is surely a mistake. The world of employee compensation does not divide neatly into legally required payments on the one hand and gifts on the other. A bonus, for example, is neither; nor is severance pay; nor — what indeed is a form of severance pay — is a payment made in recognition of long years of work abruptly cut off by a tragic accident. Many of the mutual understandings on which the effective functioning of labor markets depends are not reduced to legally enforceable commitments, because the parties don’t want the uncertainty and expense of a lawsuit if they have a disagreement. See Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984). (As a matter of fact, employment at will remains the dominant form of employment relationship in this country.) Nevertheless those nonbinding mutual understandings are commercial rather than altruistic. It is true that when as in this case the employment relationship is defined by a collective bargaining agreement, payments to workers of compensation in excess of what the agreement specifies may, by undermining the union’s status as exclusive bargaining representative of the workers, violate the National Labor Relations Act. See e.g., NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405 (7th Cir.1977) (per curiam). But there is no suggestion that Levy’s payment of an additional 4 weeks’ wages to Tyson after he had ceased being an employee of Levy’s raises any problems under the agreement and hence under the Act. Indeed, the fact that “gifts” by an employer to his unionized employees could raise problems under the Act is one more piece of evidence that the payment Levy made to Tyson in 1982 is not properly described as a gift.
A better argument for the pension fund is that since Levy had already paid Tyson the 4 weeks disability pay that the collective bargaining agreement required Levy to pay him, the additional payment in 1982 could not have been by reason of disability and therefore cannot be fitted within section 1.25. But the section is not clearly limited to payments made under legal obligation. The words “entitled to payment” might have that force; that is, they could be intended to protect the employee in the event that the employer, though contractually obligated to pay him, fails to do so. But they need not be so read; the disjunctive treatment of “paid” and “entitled to be paid” could signify that the employee was entitled to credit for money actually paid him whether or not legally due him, plus money legally due him whether or not actually paid him. The payment made in 1982 was certainly made by reason of Tyson’s disability, perhaps in conjunction with his long years of service — a factor not excluded by the section, though not specifically listed in it.
The fund’s best argument is that to allow a gratuitous payment to be credited would enable an employer to transfer great wealth, at small cost to itself, from the fund to a former employee. The contribution that Levy would need to make to the pension fund (if the fund would accept it) on the payment in 1982 that put Tyson over the hump is only about $200; if this payment entitled him to a pension it would mean that for a trivial outlay Levy had bought Tyson an annuity of $375 a month for the 12 years until his regular pension vests at age 65. The present value of such an annuity is on the order of $30,000. In effect, at the discretion of the employer, a 14 years and 35 weeks vesting period is lowered to 14 years and 31 weeks. (It can’t be shortened much beyond this, however, because of the 501-hour limitation in section 1.25.)
These arguments are respectable and may, singly or together, in the end demonstrate that as a matter of contract interpretation Tyson is not entitled to the disability pension. (He would not be completely out in the cold; he is receiving a social security disability pension.) But they do not show that there is no “detailed basis” for a contribution by Levy, and hence that the statute bars a pension for Tyson. The detailed basis is section 1.25.
The existence of interpretive uncertainty does not bring section 302 of the Taft-Hartley Act into play. Section 302 was primarily designed to prevent employers from bribing union officers and union officers from extorting money from employers. Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959); United States v. Ryan, 225 F.2d 417, 426 (2d Cir.1955) (L. Hand, J., dissenting), rev’d, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1956); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir. 1981). The present case is remote from this policy. In making an additional payment to Tyson a year after the accident forced him to stop working, Levy was not trying to bribe union officers — whether in order to undermine the loyalty of the teamsters union to the teamsters employed by Levy or for any other reason. Nor was Levy being extorted to provide favors for union officers. It was merely trying to get a pension for its former employee — a pension, it is true, that would be paid for very largely by other employers; but whether or not this feature gives them a basis for squawking, or violates the collective bargaining agreement, it does not affront the purposes behind the statute.
Granted, a statute may have a life of its own, and because of its strict and broad wording forbid practices remote from the draftsmen’s contemplation. Legislators often make a statute overinclusive in order to be sure there are no loopholes; we saw an example of this recently in FDIC v. O’Neil, 809 F.2d 350, 352 (7th Cir.1987). But even read literally, section 302 does not carry the day for the pension fund. The specific terms on which hours are to be credited are set out in detail and in writing in section 1.25 of the plan agreement, which can of course be considered along with the collective bargaining agreement in deciding whether the statutory requirement has been satisfied. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1263 (9th Cir.1984). No writing, however detailed, can eliminate all questions of interpretation; the existence of a large body of case law arising from disputes over the meaning of the Internal Revenue Code shows this. The existence of an interpretive question does not preclude the pension fund from accepting employer contributions.
It is true, but not helpful to the fund, that the statutory requirement of a detailed written basis for pension and welfare benefits appears to have been intended not only to back up the statute’s anti-bribery and anti-extortion policies but also to limit the discretion of unions in administering such funds, lest union officers use the discretion to punish their enemies and reward their friends. See 93 Cong.Rec. 4746-47 (1947); Denver Metropolitan Ass’n v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1372-73 (10th Cir.1978). How detailed is detailed enough is not discussed in the cases; but section 1.25 of the plan agreement in this case is detailed enough to transform a dispute over the exercise of discretion (a dispute the persons vested with the discretion are almost certain to win) into a dispute over the meaning of a document, a dispute susceptible of objective resolution by a court or arbitrator. That, we believe, is sufficient detail to satisfy the statute. And in fact this case involves no exercise of discretion by the fund’s managers or anyone else connected with the union.
If the fund’s statutory argument were accepted, employees would find it hard to qualify for pensions from union funds. For any time the pension plan was not absolutely crystalline in its application to an employee’s situation, the fund would refuse to accept contributions and he would therefore fail to qualify. Such an interpretation of section 302 would throw an unintended monkey wrench into the operation of union pension plans and would endanger the pension rights of many employees covered by such plans.
The collective bargaining agreement provided an adequately detailed written basis for Levy to contribute to the fund for the 4 weeks pay that it gave Tyson in 1982. Whether, with this contribution, he is entitled to the pension is a question of contractual interpretation that the district court did not answer. The court did say that since the fund could not credit the contribution to 1981, it would not be acting irrationally in crediting it to 1982; but with the premise removed, the conclusion falls. Indeed, but for the statute the fund would apparently have no objection to crediting the payment to 1981 — though since the contribution was never made, the fund has never had occasion to decide what year to credit it to.
We hold only that the statute is not a bar to Tyson’s claim. We remand the case for a determination of his contractual entitlement.
Reversed and Remanded, With Directions.
Question: What 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_initiate
|
G
|
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.
INSURANCE COMPANY OF NORTH AMERICA et al. v. TRAWLER CORMORANT, Inc. et al.
No. 4830.
United States Court of Appeals, First Circuit.
June 21, 1954.
Thomas H. Walsh, Boston, Mass. (Leo F. Glynn, Boston Mass., on the brief), for appellants.
Charles S. Bolster, Boston, Mass. (Francis T. Leahy and Bingham, Dana & Gould, Boston, Mass., on the brief), for Trawler Cormorant, Inc., and Pilgrim Trust Co., appellees.
Francis E. Silva, Jr., Boston, Mass. (Richard J. Cotter and Warner, Stack-pole, Stetson & Bradlee, Boston, Mass., on the brief), for Bromfield Mfg. Co., Inc., appellee?
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
The final decree of the District Court entered on October 22, 1953, is affirmed.
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_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.
J. I. CASE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 12098.
United States Court of Appeals Seventh Circuit.
March 12, 1958.
O. S. Hoebreckx and Robertson, Hoe-breckx & Davis, Milwaukee, Wis., for-petitioner.
Harold A. Katz, Chicago, Ill., for intervener.
Stephen Leonard, Associate Gen.. Counsel, Frederick U. Reel, Jerome D.. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.
HASTINGS, Circuit Judge.
The J. I. Case Company petitions this court pursuant to Section 10(f) of the National Labor Relations Act (the Act), as amended, 29 U.S.C.A. § 160(f), to set aside an order of the National Labor Relations Board, reported in 118 N.L.R.B. 56, requiring that company to cease and desist from refusing to bargain collectively by declining to furnish the certified bargaining representative of its employees at its Bettendorf and Rock Island plants certain information and wage rate data concerning time studies and job evaluation. The Board, in its answer, has requested enforcement of its order pursuant to Section 10(e) of the Act.
The collective bargaining agreement in effect at all times material to this petition at the Company’s Bettendorf plant was executed on January 27, 1956 and was to continue in force for two years. It was reopenable as to wages on January 30, 1957 upon sixty days written notice. Two sets of wage rates were set up under the contract: Schedule A rates were hourly rates and Schedule B rates were applicable to piece rate or incentive Workers. It was provided that the company would establish piece prices by time study or other appropriate methods. “Classification rates” at ten percent higher than guaranteed minimum piece rates were to be in effect until piece rates were set. Further provision was made for review of a piece price in the event of a significant change in the nature of a job. The contract provided for the usual grievance procedure, specified that “[cjomplaints regarding piecework prices may be handled in accordance with the grievance procedure”, and indicated that the agreement should be interpreted as disposing “of any and all issues subject to collective bargaining, except with respect to grievances * *
The Company had furnished the Union a summary of all jobs at the Bettendorf plant including the “vertical turret lathe” job which was indicated to be a single machine operation. After the execution of the bargaining agreement, the Company changed the job to a two machine operation but did not change the rate of pay. The Union made a formal request in writing on March 26, 1956 asking for certain data relevant to the job, including the time studies on the job as a two machine and as a one machine operation and the various criteria the Company used in setting up a job evaluation for the two machine job. The request from the Union suggested “that the information include what weight is given each factor used to arrive at a final decision on the established rate and what factors are considered in making such a decision.” The Union stated in this letter that the information was needed before further discussion was possible.
There was no written reply to the Union’s formal request, but, at the next regularly scheduled meeting between the Plant Grievance Committee and Company representatives, the superintendent in charge of the department making time studies, made an oral presentation of the time study information on the two machine and one machine jobs, and diagrammed the operation on a blackboard. The Company refused to give the time studies to the Union so that its time study experts could examine them. It also refused to supply the other data requested. The Union indicated its dissatisfaction with the information and some time later submitted a written request, pursuant to terms of the agreement, to negotiate a new rate for the job.
On March 28, 1956, the Union made a further request of the Company for information needed “for purposes of collective bargaining and contract administration * * This request was for “all data and time study information and material used in setting the incentive rates which are currently in effect for all jobs in the UAW Bargaining Unit at the Bettendorf works * * * ”, and for “all data, studies, and other information which is used to determine the value of each job currently listed in Schedules A and B * * * ”, as well as such data used in determining the respective labor grade for each job. The Company refused to supply this data, stating that since no negotiations were in progress, it was not obligated to do so.
The collective bargaining contract in effect at the Company’s Rock Island plant was a two year agreement entered into on January 20, 1955. It was similar to the agreement at the Bettendorf works of the Company. The contract could be reopened after September 1, 1955 by either party, upon thirty days written notice, for negotiations on wage rates. The required written notice had to “set forth specifically the adjustments desired.” The agreement contained provision for the usual grievance procedure and wage provisions, including a method for establishing piecework rates and a complete schedule of rates for the various labor classifications.
Some dissatisfaction arose among the Rock Island plant’s tractor assembly employees over the failure of the company to announce piece rates. After these rates for the tractor line had been announced pursuant to a company time study, this dissatisfaction continued, and, on March 15, 1956, at a regular grievance meeting between the company representatives and the Bargaining Committee of the Union, the Union requested that the Company make available the time study data for the tractor line jobs. The Union repeated its request in writing on April 5, stating that it needed the time studies requested to “arrive at an answer as to whether there was a legitimate complaint or not.” The Company, without explanation, refused to make these time studies available.
Unfair labor practice charges were filed with the Board by the International Union against the Company. The Trial Examiner found violations of Section 8 (a)(5) and (1) of the Act in the Company’s refusal of the March 15 and March 26 requests but found no violation in the refusal of the broad request made on March 28 for “all data and time study information” for “all jobs” in the bargaining unit at' the Bettendorf works because such request was unduly burdensome and because the information so requested exceeded any need by the Union, existing or prospective. The Board, upon the undisputed facts presented, sustained the holding that the refusals to supply the data requested on March 15 and 26 were in violation of the Company’s statutory bargaining obligations but found, in addition, that the refusal of the March 28 request was also a violation of the provisions of the Act.
Although the particular circumstances in each case must be considered in determining whether or not the statutory obligation to bargain in good faith has been met (N.L.R.B. v. Truitt Mfg. Co., 1956,.351 U.S. 149, 153, 76 S.Ct, 753, 100 L.Ed. 1027), there are numerous decisions to the effect that a refusal by an employer to supply pertinent and relevant wage data concerning wage rates of the employees is a violation of the obligation to bargain in good faith. N.L.R.B. v. F. W. Woolworth Co., 1956, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235, reversing 9 Cir., 1956, 235 F.2d 319; Taylor Forge & Pipe Co. v. N.L.R.B., 1956, 7 Cir., 234 F.2d 227; certiorari denied, 1956, 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238; Boston Herald-Traveler Corp. v. N.L.R.B., 1955, 1 Cir., 223 F.2d 58; N.L.R.B. v. Item Company, 1955, 5 Cir., 220 F.2d 956; N.L.R.B. v. Whitin Machine Works, 1954, 4 Cir., 217 F.2d 593; N.L.R.B. v. Otis Elevator Co., 1953, 2 Cir., 208 F.2d 176.
The Company contends that, in light •of the circumstances in this case, it fulfilled its statutory duty to bargain. It urges that it had no obligation to furnish the desired information because the Union’s requests for data were not made in good faith for purposes of collective bargaining; the requested data pertained neither to a pending grievance nor to a request for negotiation under the contract; the production of the data would have been unwarrantedly burdensome since the Company did offer to supply some of the information orally; and, finally, the requested data had not been relied upon by the Company during negotiations with the Union but was used for internal management purposes only.
If, as the Company contends, the Union’s requests, in each instance, were not made in good faith for the purpose of collective bargaining, the refusal to supply the data would not have been a violation of the Act. Boston Herald-Traveler Corp. v. N.L.R.B., 1955, 1 Cir., 223 F.2d 58, 63; Superior Engraving Co. v. N.L.R.B., 1950, 7 Cir., 183 F.2d 783, 794. The Board has never disputed this but urges that, on the record in this case, the Union’s requests were made in good faith. Cf. Utica Observer Dispatch v. N.L.R.B., 1956, 2 Cir., 229 F.2d 575, 577. In this connection, the Company failed in its attempt to prove a series of groundless requests for data all purportedly part of a general scheme of harassment by the Union. There was also little to bolster the Company’s claim that the Union indulged in the filing of groundless •charges with the Board.
Putting aside the matter of the good faith of the Union in previous dealings with the Company, the question of whether the Union’s requests in this case were made in good faith turns, as the Board indicates, on a determination of the relevance of the information to the Union’s task as the bargaining representative. The Board urges that, in each instance, the data requested was required by the Union in the administration and policing of the collective bargaining agreements in force at the two plants here involved. The Company takes issue with the Board on this latter point and in so doing raises basic questions as to the nature of collective bargaining. The petitioner contends that the statutory duty to bargain in good faith is pegged to the existence of pending wage negotiations without which there is no obligation to bargain. It urges further that under its contracts with the Union all complaints regarding piecework prices must be handled by grievance procedures and that no grievances were filed in the instant situations.
These contentions stem from a basic disagreement between petitioner and the Board as to the proper conception of the Union’s role as representative of the employees and of the very nature of the collective bargaining process. The contention that the Union’s right to data is limited to pending wage negotiations overlooks the fact that collective bargaining is a continuing process which, “[a]mong other things, * * * involves day to day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract.” Conley v. Gibson, 1957, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. See also Aeronautical Industrial District Lodge 727 v. Campbell, 1949, 337 U.S. 521, 525, 69 S.Ct. 1287, 93 L.Ed. 1513. A collective bargaining agreement thus provides “the framework within which the process of collective bargaining may be carried on.” Timken Roller Bearing Co. v. N. L. R. B., 1947, 1 Cir., 161 F.2d 949, 955. The Union not only has the duty to negotiate collective bargaining agreements but also the statutory obligation to police and administer the existing agreements. The provision in the Bettendorf contract that the agreement “disposes of any and all issues subject to collective bargaining, except with re-speet to grievances * * * ” does nothing more than foreclose the Union from bargaining during the life of the contract about matters not covered therein. This clause does not affect the Union’s right and duty to administer the contract.
There is no language in the contracts here involved which, under the circumstances, could be considered a waiver of the Union’s right to receive the requested information. Cf. International News Service Division of the Hearst Corp., 113 N.L.R.B. 1067, 1070 where the Board held that there must be a clear and unmistakable showing that such a waiver occurred. Further, the Board has indicated that the statutory obligation to furnish data to the bargaining representative “is not satisfied by a substitution of the grievance procedure of the contract for [the employer’s] obligation to furnish the Union with information it needed to perform its statutory function.” Hekman Furniture Co., 101 N.L.R.B. 631, 632, enforced 6 Cir., 1951, 207 F.2d 561; Leland-Gifford Co., 95 N.L.R.B. 1306, 1322, enforced 1 Cir., 1952, 200 F.2d 620, 624.
The Board seeks support for its position in this ease in the recent decision by the Supreme Court reversing the Court of Appeals for the Ninth Circuit in N.L.R.B. v. F. W. Woolworth Co., 9 Cir., 1956, 235 F.2d 319, and also in the decision of this court in Taylor Forge & Pipe Co. v. N.L.R.B., 7 Cir., 1956, 234 F.2d 227. In the Woolworth case, shortly after negotiation and execution of a collective bargaining contract, the Union requested certain wage information including the number of hours worked per week by each employee and also each employee’s total pay and rate of pay. This request was ignored by the Company. The Board found this to be a violation of Section 8(a) (1) and (5) of the Act but the Court of Appeals denied the petition for enforcement. The Supreme Court without opinion summarily reversed that court’s decision. N.L.R.B. v. Woolworth Co., 1956, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235.
In many respects there is a close parallel between the Woolworth case and the instant case. The only ground for the request expressly asserted in Woolworth was that the information was needed for “intelligent and equitable administration of the Agreement.” N.L.R.B. v. F. W. Woolworth Co., 9 Cir., 1956, 235 F.2d 319, 322. There was also some reference to complaints by employees giving rise to potential grievances and creating the need for the requested data. Ibid. The position taken by the company in the Woolworth case in refusing the data was in all material aspects identical to that of the petitioner in the instant case. The Court of Appeals for the Ninth Circuit after noting the language of the Supreme Court in N.L.R.B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 to the effect that cases involving requests for data must each turn on their peculiar circumstances, proceeded to reject the Board’s findings and conclusions as without any rational basis and ruled that the Union must in such cases show more clearly some proof of relevancy of the information requested to its role as bargaining representative.
Although the Supreme Court, in summarily reversing without opinion the Court of Appeals in the Woolworth case,, gave little guide for the determination, of related cases, its rejection of the-Ninth Circuit’s decision clearly indicates that more weight must be given the Board’s findings on the question of the relevance of the information requested' to the Union’s statutory obligation to> police and administer the agreement.
The Court of Appeals in the Woolworth case did recognize that the-Board was not enunciating a “per se”' right to information. Clearly, there is no such right of the Union to information. The Board certainly does not so-contend, although, as the dissenting opinion of Mr. Justice Frankfurter in N.L.R.B. v. Truitt Mfg. Co., supra, 351 U.S. at page 156, 76 S.Ct. at page 757 indicated, the Board has increasingly tended to approach the “good faith” and disclosure question in an overly mechanical fashion.
The Board likens the circumstances involved in this present case to those in Taylor Forge & Pipe Co. v. N.L.R.B., supra. In that case the Union’s request was made during bargaining negotiations and was for data on certain “point ratings” which the Company used in determining each employee’s rate of pay. The information was refused. The Board concluded that the requested information was relevant and essential to the parties’ bargaining, and the Board’s decision was affirmed by this court.
)
The Company in the instant case attempts to distinguish the Taylor Forge case and several others cited in support of the Board’s position on the ground that in each case bargaining negotiations were involved. Because of the continuing nature of the bargaining process this distinction is not controlling. The fact that negotiations are pending may be an important factor in considering the relevance of the requested data to Union bargaining needs, but it is not the sole consideration. The courts have recognized that the information the Unions are entitled to have from management “should not necessarily be limited to that which would be pertinent to a particular existing controversy.” N.L.R.B. v. Whitin Machine Works, 4 Cir., 1954, 217 F.2d 593, 594, certiorari denied 349 U.S. 905, 75 S.Ct. 583, 99 L.Ed. 1242; specifically approved in N.L.R.B. v. Item Co., 5 Cir., 1955, 220 F.2d 956, 958, certiorari denied 350 U.S. 905, 76 S.Ct. 177, 100 L.Ed. 795, and in Boston Herald-Traveler Corp. v. N.L.R.B., 1 Cir., 1955, 223 F.2d 58, 62, 63.
We hold that the Board correctly found that each request by the Union was made in good faith for data directly related to the Union’s functions as bargaining representative. The Union was interested in obtaining the time study data on the tractor line jobs at the Rock Island plant to determine whether or not there was any basis for employee complaints as to the piece rate for those jobs and, therefore, whether or not the Union should file or support a grievance with respect to the rates for the jobs. Similarly, the Union had a real interest in any time study or other data the Company relied upon in maintaining the same rate of pay on the turret lathe-vertical job at the Bettendorf plant after changing the job from a one to two machine operation. The Company did not satisfy its obligation by oral presentation of the complicated wage data during the regular meeting with the Plant Grievance Committee.
The much broader request of March 28 was likewise well founded. The time study data, job value information and labor grade data are all important considerations in the Company’s wage structure. Taylor Forge & Pipe Co. v. N.L.R.B., supra, 234 F.2d at page 229. In this respect there is no merit in the Company’s contention that the data requested was used for internal management purposes only. Also, it is not material whether the Company relied directly on this information in its negotiations with the Union. The Board’s order requires only the production of data used in classifying or evaluating jobs or fixing rates of employees. As in the Taylor Forge case only with the requested information available would the Union be able “ ‘to know whether to press or modify a particular wage demand, whether inequities exist which merit discussion or correction, and whether other elements are present in the wage structure which, though impossible to visualize beforehand, appear to merit discussion once the full picture is available.’ ” Id. at page 230 of 234 F.2d. Finally, as the Board points out, the Union in this case was actually preparing for contract negotiations the following January to which this data would be relevant. The Board thus had sufficient basis for overruling the Trial Examiner’s finding that production of the information requested would be unduly burdensome and exceeded any need by the Union, existing or prospective. The facts were undisputed and no special weight attached to the Trial Examiner’s conclusions in this respect. F.C.C. v. Allentown Broadcasting Corp., 1955, 349 U.S. 358, 364, 75 S.Ct. 855, 99 L.Ed. 1147; N.L.R.B. v. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135, 7 Cir., 1954, 212 F.2d 216, 217. As already has been indicated the Union was entitled to this information for bargaining purposes. The fact that this case involved a large company using a complicated wage structure for a large number of employees does not lessen the Union’s right to the information. The Union made suggestions for copying the information at its own expense which the Company did not accept. The greatest bulk of the information requested was the time study data. The Company did not even attempt to satisfy the Union request for information as to labor grade and job evaluation data for the some 250 jobs involved, which would not have been overly burdensome. It would seem that, before the hearing, the Company did not actually base its refusal of the Union requests on grounds that they were unduly burdensome. If it had, some arrangement could have possibly been made to lessen such “burden.”
The parties have stipulated iri this cause that, in the event this court upholds the finding of the Board that petitioners unlawfully withheld data from the bargaining representative of its employees, that the Board’s order should nevertheless be amended:
“ * * * (1) by substituting as Paragraphs 1(a) (2) and 2(a) (2) of the Order the following language in lieu of the language now contained in said paragraphs:
“In any like or related manner interfering with the efforts of the above-named labor organization to bargain collectively on behalf of the employees in the appropriate unit.
and (2) by substituting as the last' paragraph of Appendices A and B the following language in lieu of the language now contained in said paragraphs :
“We will not in any like or related manner interfere with the efforts of the above-named labor organization to bargain collectively on behalf of the employees in the appropriate unit.”
The order of the Board is amended pursuant to this stipulation. The petition to review and set aside the Board’s order is denied and the Board’s request for enforcement of its order as amended by stipulation is granted.
. Local 806 of Hie International Union Automobile & Agricultural Implement Workers of America, AUL-CIO was certified as the exclusive bargaining representative of the employees at the Rock Island plant of the Company in 1946 and has been recognized by the Company as such since that date. At the Company’s Bettendorf works, the parent International Union has been, since 1953, the certified bargaining representative of the employees. In this opinion the term “the Union” will be used to refer to whichever bargaining representative is appropriate in the context.
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_appfiduc
|
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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES DEPARTMENT OF INTERIOR, Appellant, v. James W. ELLIOTT, Jr., Trustee, Appellee. In re ELKINS ENERGY CORP., Debtor.
No. 84-1826.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1985.
Decided May 6, 1985.
Thomas W.B. Porter, Washington, D.C. (William Kanter, Tracy J. Whitaker, Dept, of Justice, Washington, D.C., Robert S. More, Sp. Asst. U.S. Atty., Knoxville, Tenn., Milo Mason, Dept, of the Interior, Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for appellant.
Kurt J. Pomrenke, Bristol, Va. (James W. Elliott, Jr., White, Elliott & Bundy, Bristol, Va., on brief), for appellee.
Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
Appellant United States Department of the Interior (DOI) appeals from the district court’s decision, which affirmed the bankruptcy court, denying its claim for an administrative expense for penalties assessed against the debtor in possession for post-petition violations of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328 (1983) (Surface Mining Act). The sole issue raised by this appeal is whether postpetition environmental penalty claims are allowable under section 57(j) of the Bankruptcy Act, former 11 U.S.C. § 93(j) (1976), as an administrative expense of preserving the estate under section 64(a)(1) of the Bankruptcy Act, former 11 U.S.C. § 104(a)(1). Finding that postpetition environmental penalty claims are allowable under sections 57(j) and 64(a)(1) as an administrative expense, we reverse.
I
Elkins Energy Corporation (Elkins) filed a petition for an arrangement under Chapter XI of the Bankruptcy Act (Act) on August 3, 1979. The bankruptcy court permitted Elkins, a mining corporation, to continue its operations as a debtor in possession, pursuant to section 343 of the Act, former 11 U.S.C. § 743. On September 11, 1979, the Office of Surface Mining Reclamation and Enforcement of the DOI (OSM) issued a notice of violation to the debtor in possession for three violations of the Surface Mining Act. Elkins corrected the three violations by October 3, 1979, but nevertheless was notified that a civil penalty of $1,100 had been proposed for the issued notice of violation. On February 28, 1980, the OSM issued two more notices of violation for several additional violations of the Surface Mining Act. While the notices of violation were outstanding,' the bankruptcy court confirmed Elkins’ plan of arrangement. Elkins, however, failed to correct three of the cited violations; consequently, on June 17, 1982, OSM assessed Elkins civil penalties of $23,250 and $45,000 for the outstanding notices of violation and $1,100 for the initial notice of violation, pursuant to 30 U.S.C. § 1268(a) (1983). On that very day, the bankruptcy court converted Elkins’ case from a Chapter XI arrangement to a straight bankruptcy and appointed as trustee appellee James W. Elliott, Jr.
On October 6, 1982, DOI filed a proof of claim for $69,350 for postpetition environmental penalties assessed against Elkins. The trustee timely objected to DOI’s claim, contending that section 57(j) of the Act prohibits allowance of claims for postpetition civil penalties. The bankruptcy court sustained the trustee’s objection to DOI’s claim, 38 B.R. 390 (1984), and the district court affirmed.
II
The sole issue before us is whether section 57(j) of the Bankruptcy Act prohibits the recovery by DOI of environmental penalties assessed against Elkins, as a debtor in possession, after Elkins filed a petition for an arrangement in bankruptcy. Section 57(j), former 11 U.S.C. § 93(j), provides:
(j) Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law.
Although the language of section 57(j) appears broad enough to “bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss,” Simonson v. Granquist, 369 U.S. 38, 40, 82 S.Ct. 537, 538, 7 L.Ed.2d 557 (1962), the Supreme Court has twice construed section 57(j) to allow postpetition tax penalty claims incurred by a trustee while operating the debtor’s business. In Boteler v. Ingels, 308 U.S. 57, 59-60, 60 S.Ct. 29, 31-32, 84 L.Ed. 442 (1939), the Court stated, in holding a trustee liable for penalties incurred while the trustee operated the business of the debtor:
Subdivision 57(j) prohibits allowance of a tax penalty against the bankrupt estate only if incurred by the bankrupt before bankruptcy by reason of his own delinquency. After bankruptcy, it does not purport to. exempt the trustee from the operation of state laws, or to relieve the estate from liability for the trustee’s delinquencies.
See Nicholas v. United States, 384 U.S. 678, 692-695, 86 S.Ct. 1674, 1684-1686, 16 L.Ed.2d 853 (1966) (trustee liable for federal tax penalties incurred by the trustee after the bankruptcy petition had been filed). Moreover, the leading bankruptcy treatise, relying on Boteler, advises that section 57(j) “applies only to claims against the bankrupt arising prior to bankruptcy. It does not propose to exonerate a trustee or receiver in bankruptcy from penalties which he incurs in the course of continued operation of the bankrupt’s business.” 3 J. Moore & L. King, Collier on Bankruptcy U 57.22[1], p. 386 (14th ed. 1977) (emphasis in original). It is, accordingly, beyond question that postpetition tax penalties incurred by a trustee while operating a bankrupt’s business are allowable under section 57(j). See also Gough Indus. Inc. v. Rothman, 446 F.2d 536, 540 (9th Cir.1971), cert. denied, 405 U.S. 916, 92 S.Ct. 933, 30 L.Ed.2d 785 (1972); In Re Samuel Chapman, Inc., 394 F.2d 340, 341 (2d Cir.1968); In Re Chicago & N.W. Ry. Co., 119 F.2d 971, 972 (7th Cir.1941); In Re Los Angeles Lumber Products Co., 45 F.Supp. 77, 87 (S.D.Cal.1942); Annot., 1 A.L.R.Fed. 657 (1969 & Supp.1984).
But the trustee argues, and both the district court and the bankruptcy court held, that section 57(j) allows only postpetition tax penalties incurred by a trustee while operating the debtor’s business. The trustee contends that the Supreme Court in Boteler and Nicholas created a narrow exception to section 57®’s broad prohibition of penalty claims for tax penalties incurred by the trustee because, pursuant to 28 U.S.C. § 960 and its predecessor, Act of June 18, 1934, ch. 585, 48 Stat. 993, the trustee is required to pay all applicable federal, state, and local taxes while operating the debtor’s business. Since no similar statute compels the trustee to pay penalties arising from violations of regulatory statutes, the trustee contends that such penalties are not allowable under section 57(j). We disagree. Although no court has held that postpetition civil penalties incurred by a debtor in possession are allowable under section 57(j), we find that the rationale of Boteler and Nicholas extends beyond mere tax cases. We are convinced that section 57(j) allows all postpetition penalty claims, regardless of their type and regardless of whether they are incurred by the trustee or by the debtor in possession.
Congress enacted section 57(j) to protect the innocent creditors of a debtor: Congress refused to allow claims for penalties because they are intended to punish the debtor for delinquencies caused by the debtor. See, e.g., 3 J. Moore & L. King, supra, at 1157.22[1], p. 381; Simonson v. Granquist, 369 U.S. at 40-41, 82 S.Ct. at 538-539; In Re Unified Control Systems, Inc., 586 F.2d 1036, 1038 (5th Cir.1978) (per curiam); United States v. Rome, 414 F.Supp. 517, 519-520 (D.Mass.1976); In Re Kline, 403 F.Supp. 974, 977 (D.Md.1975), aff'd, 547 F.2d 823 (4th Cir.1977) (per curiam); In Re Shawsheen Dairy, Inc., 47 F.Supp. 494, 497 (D.Mass.1942). Penalties incurred by the debtor before the filing of the bankruptcy petition should not reduce the distribution to which the creditors are entitled, because the creditors could not prevent the accrual of the penalties.
On the other hand, once the bankruptcy petition has been filed, the creditors can prevent the accrual of penalties. They, therefore, cannot by their inaction allow the debtor to incur penalties while operating the business, perhaps benefiting the profitability of the business, and yet object to the allowance of postpetition penalty claims. In effect, once the petition is filed the creditors lose their “innocent” status.
If a debtor remains in possession, his operation of the business is subject “at all times to the control of the court.” The creditors, through an elected creditors’ committee, are empowered to, among other things, “examine into the conduct of the debtor’s affairs” and to make recommendations to the supervising bankruptcy court concerning the debtor’s operation of the business. The leading bankruptcy treatise recognizes the watchdog role of the creditors.
The operation of the business by the debtor in possession is to be done under the authority and supervision of the court, however. The creditors have an interest in this operation, and through their committee of creditors elected at the initial meeting may give voice to their judgment as to how the business should be run. Therefore, the committee elected at the first meeting will consider matters of operation, and may make recommendations and suggestions as to the operation of the business during the pendency of the case. ... The court ... will ... give close consideration to the voice of creditors given through the committee of creditors elected at the first meeting.
8 J. Moore & L. King, Collier on Bankruptcy § 5.15, p. 581 (14th ed. 1978). Since the creditors’ committee can request the bankruptcy court to intervene in the debt- or’s operation of the business, the creditors cannot shield their eyes from the debtor’s unlawful activities, activities that may benefit the creditors by increasing the distribution to which the creditors are entitled. Subjecting the estate to postpetition penalty claims will encourage the creditors to ensure that the debtor is complying with the law while at the same time ensure that violations of law do not go unpunished. The Second Circuit, in holding that tax penalties incurred by a debtor in possession are allowable under section 57(j), recognized that creditors should not be permitted to benefit from the debtor in possession’s delinquencies:
[A] rule under which the estate will remain liable for the tax penalties may well result in inducing the general creditors to interest themselves in the debtor in possession’s promptly discharging his duties under the revenue laws and thus aiding in the proper collection of the taxes which fall due during arrangement proceedings.
In Re Samuel Chapman, Inc., 394 F.2d 340, 342 (2d Cir.1968).
The trustee’s reliance on Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557 (1962) and a string of related cases is misplaced, because at issue in those cases were prepetition penalty claims, not postpetition penalty claims. Consequently, the broad language in Simonson that section 57(j) “plainly manifests a congressional purpose to bar all claims of any kind against a bankrupt except those based on a ‘pecuniary’ loss,” 369 U.S. at 40, 82 S.Ct. at 538, is inapposite. Instead, the holding of both Boteler and Nicholas is more instructive, because there is no reasoned distinction between various types of postpetition penalty claims. Whether the postpetition penalty is a tax penalty or an environmental penalty and whether the penalty is incurred by the trustee or the debtor in possession is irrelevant: the critical inquiry is the extent to which the creditors could prevent the accrual of the penalties. In light of the ability of the creditor’s committee to act as the watchdog of the debtor and to object to the debtor’s operation of the business to the ever-supervising bankruptcy court, all postpetition penalty claims are allowable under section 57(j). After the bankruptcy petition is filed, the creditors lose their “innocence” due to their ability to take action to prevent the debtor in possession from incurring postpetition penalties.
The trustee further argues that the public policy of preventing the estate from being diluted by the assessment of penalties supports disallowance of the postpetition penalty claims here at issue. The trustee, however, ignores that in another similar setting, namely when postpetition tax penalty claims are at issue, postpetition penalty claims are allowable. Furthermore, the articulated purpose of section 57(j), the protection of innocent creditors from penalty claims incurred by an independent debtor, would not be furthered by a holding that permits creditors to benefit from their silence while the debtor violates the law.
We, therefore, hold that postpetition environmental penalties assessed against the debtor in possession for violations of the Surface Mining Act are allowable under section 57(j). Therefore, DOI’s claim of $69,350 for an administrative expense of preserving the estate under section 64(a)(1) of the Act, former 11 U.S.C. § 104(a)(1), should have been allowed. The judgment of the district court is accordingly
REVERSED.
. Since Elkins’ petition was filed before October 1, 1979, the effective date of the Bankruptcy Reform Act of 1978 for purposes of this litigation, this appeal is governed by the provisions of the Bankruptcy Act. Pub.L. No. 95-598, § 403(a), 92 Stat. 2683 (1978).
. United States Dept. of the Interior v. Elliott, 40 B.R. 985 (W.D.Va.1984).
. Bankruptcy Act § 342, former 11 U.S.C. § 742.
. Bankruptcy Act § 339(l)(a), former 11 U.S.C. § 739(l)(a).
. In Re Petite Auberge Village, Inc., 650 F.2d 192 (9th Cir.1981); In Re Becker's Motor Transp., Inc., 632 F.2d 242 (3d Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981); In Re Unified Control Systems, Inc., 586 F.2d 1036 (5th Cir.1978) (per curiam); United States v. Wagner, 390 F.2d 13 (10th Cir.1968); In Re Brewster-Raymond Co., 344 F.2d 903 (6th Cir. 1965).
. We decline to draw a distinction between post-petition tax penalties, such as those at issue in Boteler and Nicholas, and penalties incurred for violations of environmental regulations. Preserving and maintaining this nation's natural beauty is an important governmental interest. Furthermore, the existence of methods, other than the assessment of civil penalties, of effecting compliance with the Surface Mining Act and regulations promulgated thereunder, see 30 U.S.C. § 1271, does not affect our construction of § 57(j). We are unprepared to interfere with the discretion vested in the Secretary-of the Interior to ensure compliance, by whatever means he deems to be most effective, with the Surface Mining Act.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
William M. WOLFE, Plaintiff-Appellant, v. Helen F. MANLOWE, Executrix of the Estate of John B. Manlowe, Deceased, Defendant-Appellee.
No. 71-1621.
United States Court of Appeals, Eighth Circuit.
Submitted May 12, 1972.
Decided July 12, 1972.
Martin A. Cannon, Omaha, Neb., for plaintiff-appellant.
George A. Bangs, Rapid City, S. D., for defendant-appellee.
Before VOGEL, LAY and BRIGHT, Circuit Judges.
BRIGHT, Circuit Judge.
William Wolfe brought this diversity action against John Manlowe, seeking to recover a commission under an option contract. Upon defendant’s death prior to trial, his executrix became the defendant by substitution. . The trial court, Judge Denney, directed a verdict against plaintiff Wolfe, and he appeals. We affirm.
In early 1968, John Manlowe owned 750,000 shares of stock in United-Buckingham Freight Lines, Inc., a trucking company with headquarters in Omaha, Nebraska. Because of concern over losses suffered by the company, Manlowe decided to sell his stock, and he advised Wolfe of his intention. On May 23,1968, Manlowe and Wolfe entered into an option agreement, as follows:
OPTION
May 23, 1968
For $1.00 and other good and valuable considerations the receipt of which is hereby acknowledged, I hereby grant to Mr. William M. Wolfe, a 60-day exclusive option to sell my stock of 750,-000 shares approximately, or to purchase it himself or by his nominee for a price of $12.00 per share. Total shares outstanding is 1,250,000 shares approximately. Should Wolfe sell the Company to others I agree to pay him a commission of 5%. The stock above referred to is stock of United-Buckingham Freight Lines, Inc. and its domestic and foreign subsidiaries.
/s/ John Manlowe
During the next sixty days, Wolfe conducted a prospecting campaign to find a buyer for Manlowe’s stock. In early July 1968, Wolfe advised Manlowe that he had found a buyer, Yellow Transit, Inc. (Yellow). From July 17th to July 19th, Wolfe and Manlowe attended three conferences with representatives of Yellow. On July 20th, Wolfe sent the following message to Manlowe by telegram:
I have in my hands the form of contract prepared by the attorneys for Yellow Transit as my nominee under the exclusive option provided me by you under date of May 23, 1968. Copies are now available to you and your attorneys. This contract is subject to such modifications in for me [sic] by your counsel as may be required by you and the law and regulations of the federal government concerning the sale of control of a transportation company involved in interstate commerce. The substance of the contract meets the objective of the exclusive option and the understandings you and I have had in conference with the officers and representatives of Yellow Transit. Yellow has advised me that it has completed arrangements for the money required and that it is prepared to execute such an agreement at a time convenient to you. * * * [emphasis added]
Wolfe did not send a copy of the proposed contract to Manlowe. On July 23, 1968, Cecil Johnson, a member of the board of directors at Yellow, sent the following letter to Manlowe:
Dear Mr. Manlowe:
Confirming the telephone conversation with you this morning, I have passed on to Yellow Transit the substance of our talk relative to the negotiations pending for acquisition by Yellow Transit Company of the approximate 750,000 shares you own or control of United Buckingham Freight Lines as referred to in the Option Agreement given under date of May 23, 1968 to William M. Wolfe. Representatives of Yellow Transit are awaiting word from you as to the time they should come to Spokane, or some point convenient to you, to continue the discussions which hopefully will result in the acquisition by Yellow Transit Company of the above-stated 750,000 shares. It is my understanding from your promise this morning that you will communicate the time and place to myself, or you will call either Mr. Don McMorris or Kenneth Midgley, Esq., direct in Kansas City, and that this will be as soon as possible following the completion of the trial part of the lawsuit in which you are now involved. You can reach Don McMorris through Yellow Transit in Kansas City- — his telephone Number is 363-3344, and Ken Midgley’s telephone number is 842-9692 (area code for Kansas City is 816).
Further, it is my understanding you will not enter into negotiations with any other party until you have had the further discussions with Yellow Transit representatives as contemplated above.
Mr. Manlowe, as I view the current situation from my vantage point it should be possible without extended further negotiations for you to complete the transaction for the sale of your stock. In my remote position concerning these matters, I want you to know I have enjoyed my very limited part in the dealings up to date.
Yours very truly,
Cecil A. Johnson
b/c Don McMorris
Ken Midgley
Wm. M. Wolfe
On July 31,1968, Manlowe, through his attorney, responded to Johnson as follows:
Re: John Manlowe
Dear Mr. Johnson:
Your letter of July 23, 1968 addressed to Mr. Manlowe has been referred to us for reply. In order to avoid any further misunderstanding on the subject, please be advised as follows:
(1) The instrument dated May 23, 1968 executed by Mr. Manlowe and entitled “Option”, if it had any validity originally, has expired by its own terms and there are no legal rights, duties or obligations in existence as a result thereof.
(2) The telegram of July 20, 1968 from William M. Wolfe to John Manlowe was not and did not purport to be an exercise of the alleged option in accordance with its terms and Mr. Wolfe was so advised by telegram from John Manlowe dated July 20, 1968.
(3) Mr. William M. Wolfe has no authority to purchase nor to offer to any other person, firm or corporation, the stock of John Manlowe in UnitedBuekingham Freight Lines, Inc.
(4) Mr. William M. Wolfe has no authority to engage in any negotiations with any person, firm or corporation in which he may purport to act on behalf of United-Buekingham Freight Lines, Inc. or any of its officers, directors or controlling stockholders.
(5) If Mr. Manlowe engages in future negotiations with Yellow Transit with respect to the stock which he may own or control in United-Buekingham Freight Lines, Inc. and if such negotiations should result in some agreement or contract, Mr. Manlowe will not recognize any obligation to pay Mr. William M. Wolfe any commission or sum of money whatsoever by reason of or related to the alleged option of May 23, 1968.
(6) If Mr. Manlowe should, in the future, negotiate with Yellow Transit concerning any consolidation, merger or corporate combination involving United-Buekingham Freight Lines, Inc. and if such negotiation should result in a contract or other arrangement, Mr. Manlowe will not recognize any obligation to pay any commission or other sum of money to William M. Wolfe by reason of or related to the purported option of May 23, 1968.
Yours very truly,
BANGS, MeCULLEN, BUTLER & FOYE
By Geo. A. Bangs
Attorneys for John Manlowe
Subsequently, Wolfe brought this action, alleging that he was entitled to the commission specified in the option agreement because he had produced a ready, willing, and able purchaser for the stock.
In sustaining defendant’s motion for a directed verdict, the district court stressed that, in the July 20, 1968 telegram, Wolfe had characterized Yellow as his nominee. The court ruled that under the terms of the option agreement, Wolfe was not entitled to a commission because he had designated Yellow as his nominee to purchaase the stock. The court said:
[M]r. Wolfe * * * was not entitled to a commission if he purchased the stock himself or through a nominee. * * * The telegram to Mr. Manlowe from Mr. Wolfe * * * was an exercise of the option with Yellow as the nominee of Mr. Wolfe. Thus, the prima-facie case, if proven at all upon that basis, does not constitute a case whereunder such facts exist as would entitle Mr. Wolfe to a commission under the option contract. [Tr. 230-31]
On this appeal, Wolfe contends that the trial court erred in making this ruling because the evidence could justify a jury determination that Wolfe was acting as an agent for Manlowe in the transaction with Yellow, despite the reference to Yellow as a nominee. Appellee, in support of the judgment of dismissal, argues that, even assuming an agency relationship, Wolfe would not be entitled to a commission because the record contains no evidence showing Yellow to be a ready, willing, and able purchaser of the stock under the terms set forth in the option agreement. We agree that Wolfe failed to prove that Yellow was a ready, willing, and able purchaser. Since we rest our affirmance on this ground, we need not consider whether the trial court was correct in ruling that Wolfe was not acting as an agent for Manlowe in the transaction with Yellow.
Wolfe argues that the following statements and actions of participants in the proposed transaction constitute sufficient proof that Yellow was a ready, willing, and able purchaser: 1) the statements by Wolfe in the July 20, 1968, telegram to Manlowe; 2) the statements by Cecil Johnson in the July 23, 1968 letter to Manlowe; 3) a statement by the vice-president of Yellow that Yellow was “ready to go and get our T.A.,” referring to temporary authority from the Interstate Commerce Commission, permitting Yellow to manage United-Buckingham Freight Lines pending the acquisition; 4) a statement by Manlowe that “Yellow was hurrying. They [Yellow] wanted to get it done before the option expired.”; and 5) Manlowe’s action in dictating an equipment list to Wolfe. We do not accept this argument. None of the above statements and actions establish that Yellow was ready, willing, and able to purchase Manlowe’s stock under the terms set forth in the option agreement.
The July 20,1968, telegram from Wolfe to Manlowe contains a statement that attorneys for Yellow had drafted a proposed contract which conformed, in substance, to the terms of the option agreement. To be sure, this statement indicates that negotiations had reached the point where an agreement was possible. But the statement, standing alone, does, not establish that Yellow was ready, willing, and able to purchase 750,000 shares of Manlowe’s stock at the specified price of $12 per share. In order to establish that fact, proof of the terms of the proposed contract was necessary. Appellant did not introduce the proposed contract as evidence or otherwise prove its terms.
Although appellant’s brief refers to the July 23, 1968, letter, quoted above, from Cecil Johnson to Manlowe, we find no indication in the record that appellant offered this letter as evidence in the trial. Even assuming that the letter was offered and received, it adds little to appellant’s case since it indicates only that the parties had engaged in negotiations and that Johnson was hopeful that an agreement would be reached.
The statement by the vice-president of Yellow that his company was ready to go to the Interstate Commerce Commission for temporary authority to operate United-Buekingham Freight Lines does not indicate that Yellow was willing to comply with the terms of the option agreement.
Nor does the statement by Manlowe that Yellow was hurrying to complete the transaction before the option expired indicate the existence of any agreement. This statement does not show whether Yellow would respond with an acceptance or with a counter-offer.
Finally, we can attach little significance to Manlowe’s action in dictating an equipment list to Wolfe as proof -that Yellow was willing to comply with the terms of the option agreement.
Given this record, we find no basis for submitting the case to a jury.
Affirmed.
. Although the district court did not decide whether Yellow was a ready, willing, and able purchaser, we should affirm the decision of the district court if a proper ground appears in the record. See, e. g., Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937); Zirinsky v. Sheehan, 413 F.2d 481, 484 n. 5 (8th Cir. 1969), cert. denied, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753 (1970).
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_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
MISSISSIPPI INDUSTRIES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Missouri Public Service Commission, Mississippi Power & Light Company, Louisiana Power & Light Company, et al., City of New Orleans, Louisiana, Mississippi Public Service Commission, State of Arkansas, Union Carbide Corporation, Occidental Chemical Corporation, Arkansas & Missouri Congressional Delegations, Louisiana Public Service Commission, Arkansas Public Service Commission, Jefferson Parish, Louisiana, Arkansas Power & Light Company, Middle South Energy, Inc., Middle South Services, Inc., and Cities of Conway and West Memphis, Arkansas, Intervenors. MISSISSIPPI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. LOUISIANA PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. OCCIDENTAL CHEMICAL CORPORATION, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. REYNOLDS METALS COMPANY, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Edwin Lloyd PITTMAN, Attorney General of the State of Mississippi, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS AND MISSOURI CONGRESSIONAL DELEGATIONS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. STATE OF ARKANSAS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI LEGAL SERVICES COALITION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CITY OF NEW ORLEANS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSOURI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Representative Webb FRANKLIN, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. JEFFERSON PARISH, LOUISIANA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Nos. 85-1611, 85-1613, 85-1620, 85-1621, 85-1615 to 85-1619, 85-1623, 85-1624, 85-1626, 85-1637, 85-1640, 85-1647, 85-1712, 85-1719 and 85-1772.
United States Court of Appeals, District of Columbia Circuit.
Argued March 24, 1986.
Decided Jan. 6, 1987.
Rehearing Granted in Part April 3, 1987.
James P. Murphy, with whom Michael T. Mishkin, Washington, D.C., James V. Selna, Newport Beach, Fla., Donald T. Bliss, and David T. Beddow, Washington, D.C., were on the brief, for petitioner Arkansas Industries.
Carl D. Hobelman, Washington, D.C., with whom Jerry D. Jackson, Little Rock, Ark., M. Remy Ancarrow, Washington, D.C., and Robert J. Glasser, New York City, were on the brief, for petitioner Arkansas Power & Light Co.
J. Cathy Lichtenberg, with whom Wallace L. Duncan, James D. Pembroke, Janice L. Lower, Washington, D.C., Martin C. Rothfelder, Jefferson City, Mo., William Massey, Steve Clark, and Mary B. Stallcup, Little Rock, Ark., were on the brief, for petitioners Arkansas Public Service Com’n, et al.
Hiram C. Eastland, Jr., with whom Edwin L. Pittman, Frank Spencer, John L. Maxey, II, Jackson, Miss., and Alfred Chaplin were on the brief, for petitioners Mississippi Public Service Com’n, et al.
James K. Child, Jr., Jackson, Miss., with whom Paul H. Keck, Michael F. Healy, Douglas L. Beresford, Robert R. Nordhaus, Adam Wenner, Howard Eliot Shapiro, and Margaret A. Moore, Washington, D.C., were on the brief, for petitioners Mississippi Industries, et al.
Glen L. Ortman, with whom Clinton A. Vince and Paul E. Nordstrom, Washington, D.C., were on the brief, for petitioner City of New Orleans.
Michael R. Fontham, New Orleans, La., with whom David B. Robinson, Washington, D.C., and Paul L. Zimmering, New Orleans, La., were on the brief, for petitioner Louisiana Public Service Com’n.
Peter C. Kissel, Richard G. Morgan, Earle H. O’Donnell, and Robert R. Morrow, Washington, D.C., were on the brief for petitioners Occidential Chemical Corp., et al.
A. Karen Hill, Atty., F.E.R.C., with whom William H. Satterfield, Gen. Counsel, Jerome M. Feit, Sol., and John N. Estes, III, Atty., F.E.R.C., Washington, D.C., were on the brief, for respondent.
Richard M. Merriman, Robert S. Waters, and James K. Mitchell, Washington, D.C., were on the brief for intervenors Middle South Services, Inc., et al.
William A. Chesnutt, Harrisburg, Pa., entered an appearance for intervenor Union Carbide Corp.
Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion PER CURIAM.
Separate opinion by Circuit Judge BORK, concurring in part and dissenting in part.
Part of section 111(C)(2), pp. 1560-62, and the judgment insofar as it concerns those issues are vacated.
PER CURIAM:
We consider eighteen consolidated petitions for review of two orders of the Federal Energy Regulatory Commission (FERC or the Commission). In the orders under review the Commission held that the four operating companies of the Middle South Utilities (MSU) system must share the costs of MSU’s investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The Commission implemented this scheme by reallocating responsibility for investment costs associated with the catastrophically uneconomical Grand Gulf I nuclear plant. The parties attack both the Commission’s jurisdiction and the rationality of its decision. Although the Commission’s allocation of nuclear investment costs is subject to reasonable dispute, we do not think such criticisms warrant reversal of FERC’s orders. We therefore affirm.
I. Background
The controversy facing the court today stems from the pattern of power generation investment cost sharing practiced by Middle South Utilities and its operating companies. In order to address fully the proper allocation of the costs of nuclear power generation among those companies, we review MSU’s structure, the history of its involvement in nuclear power generation, and the record of the proceedings below.
A. The Middle South System,
1. Corporate structure. Middle South Utilities, Inc. is a registered holding company under the Public Utility Holding Company Act of 1935 (PUHCA). 15 U.S.C. § 79 et seq. (1982). It owns outright four utility operating companies: Louisiana Power & Light Co. (LP & L), New Orleans Public Service, Inc. (NOPSI), Arkansas Power & Light Co. (AP & L), and Mississippi Power & Light Co. (MP & L). See Middle South Energy, Inc., 26 FERC ¶ 63,044, 65,098 (1984). The operating companies sell electricity, both wholesale and retail, in the states of Louisiana, Arkansas, Missouri, and Mississippi.
Although each operating company has a separate board of directors, the sole stockholder, MSU, selects each director. In addition, the various companies do have common or overlapping officers and directors. The Chairman and Chief Executive Officer (CEO) of MSU is a member of the board of each operating company and the CEOs of the operating companies are members of the board of MSU. Other MSU board members are also board members of individual operating companies. Middle South Services, Inc., 30 FERC ¶ 63,030, 65,142 (Docket No. ER82-463-000) (ALJ Head).
Transactions among the various operating companies are governed by a System Agreement. Over its history, MSU has filed three successive System Agreements — in 1951, 1973, and 1982. The Commission scrutinizes the System Agreement and modifies it when necessary. See, e.g., Middle South Services, Inc., 16 FERC ¶ 61,101 (1981) (modifying the 1973 System Agreement), aff'd, Louisiana Public Service Commission v. FERC, 688 F.2d 357 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 343 (1983). Section 3.01 of the Agreement states the system’s general goal of operating as a coherent unit:
The purpose of this Agreement is to provide the contractual basis for the continued planning, construction, and operation of the electric generation * * * facilities of the Companies in such a manner as to achieve economies consistent with the highest practicable reliability of service * * *. This agreement also provides a basis for equalizing among the Companies any imbalance of cost associated with the construction, ownership and operation of such facilities as are used for the mutual benefit of all the Companies.
483-R. 7117, VII Joint Appendix (JA) 1569. In light of this language, Administrative Law Judge (ALJ) Head found that the MSU system has sought to coordinate the addition of operating capacity by each individual operating company while achieving the greatest economies of scale. As he observed:
The System Agreements * * * clearly permit and encourage, for efficiency, reliability, and other economies of scale, that the individual companies from time to time build larger facilities than are necessary to meet their own native load, to benefit all the generating companies by having lower costs and greater reliabili- ^ ^ ^
30 FERC at 65,142.
All three System Agreements have assigned the task of coordinating the planning of new generating capacity to a systemwide Operating Committee. The CEO of each operating company designates one member of the committee, as does MSU. The members representing the operating companies control 80% of the votes on the committee, apportioned according to each individual company’s share of the system’s investment in generating capacity. The representative of MSU votes the remaining 20%. Under Section 5.04 of the System Agreement, the Operating Committee can now take action on the basis of a bare majority. 483-R. 7129, VII JA 1581.
2. Investment cost sharing. As ALJ Liebman noted, the MSU system planning approach to new generating capacity inevitably results in certain operating companies having less generating capacity than do others for varying periods of time. See 26 FERC at 65,098 (Docket No. ER82-616000. If a company does not have enough capacity to meet the needs of its consumers, the deficient operating company can always draw on the excess capacity of the other companies on the system. This system also benefits those companies that have built more capacity than necessary to meet current demand. Such companies generally find willing buyers of their surplus among the other companies on the system.
Under the system planning approach, it is inevitable that an operating company will, from time to time, provide a proportionate share of the system’s investment in generating capacity that is more or less than its proportionate demand for the system’s energy. If a company’s share of the system’s generating capacity is greater than its share of the energy actually generated and distributed by the system as a whole, the company is deemed to be “long.” If the company’s share of the system’s generating capacity is less than its percentage of the system’s energy, the company is deemed “short.” 26 FERC at 65,099.
Since 1951 the MSU system has sought to iron out the inequities that would otherwise result where some companies were long while other companies were short through a system of “equalization payments.” Prior to 1973 each “short” company made a payment to the “long” companies based on a fixed dollar amount per kilowatt of capacity that the company was short. In 1973 the System Agreement was amended to provide for capacity equalization payments calculated under the “participation unit” formula, a formula that based payments on the ownership costs of the latest unit constructed by the “long” company. See id.; see also 30 FERC at 65,122-23.
Importantly, this new system did not call for equalization payments based on the relative number of dollars each company had invested in generating capacity. Instead, the relative number of kilowatts of generating capacity owned by each company formed the basis for the payments. Because kilowatts can vary in cost, the system potentially perpetuated the operating companies’ relatively unequal investment in generating capacity.
For over twenty-five years, however, the system largely avoided this potential inequity. Notwithstanding its limitations, the equalization payment approach managed to produce the effect of roughly equalizing the cost of investing in new capacity from the 1950’s through the 1970’s. During the years in which the 1951 System Agreement was in force the cost of creating such capacity was relatively uniform and relatively constant. See 616-R. 1332-33, I JA 140-41; 30 FERC at 65,168. As a consequence, the System Agreement’s allocation of equalization payments based on a constant dollar per kilowatt of short capacity served to equalize investment costs. Although in the 1970’s the cost of new units began to exceed that of older facilities by a substantial margin, the 1973 System Agreement balanced this development by basing equalization payments on the costs of the newest (and more expensive) units of the “long” companies. 26 FERC at 65,-100.
3. The shift to nuclear energy and its consequences. In the 1950’s and 1960’s the MSU system tended to add new generating units in the southern part of the system to take advantage of cheap oil and gas reserves in Louisiana. See 26 FERC at 65,100; 30 FERC at 65,143. In the late 1960’s, however, the system began a program of adding coal and nuclear generating capacity, 30 FERC at 65,144, that eventually resulted in the collapse of the investment equalization program.
AP & L was the first operating company to make such an investment in nuclear power. AP & L had historically been both a short company and one with insufficient capacity to meet the requirements of its customers. 30 FERC at 65,143. Moreover, AP & L had been losing its long-term gas contracts while Louisiana and Mississippi continued to have an adequate supply of gas and oil. 26 FERC at 65,101. In December 1974 AP & L brought on line MSU’s first nuclear plant, Arkansas Nuclear One (ANO) Unit 1.
Although ANO l’s capacity was substantially more expensive than that of non-nuclear generating units built at the time, 26 FERC at 65,100-01, the lower fuel costs of a nuclear unit made the total generation costs of ANO 1 comparable to those of other plants brought on line in the 1970’s. Thus it is fair to say that the basic system of roughly equalizing the costs and benefits derived from the system’s investment in new capacity remained intact.
The picture changed radically with the development of two new nuclear units — the Waterford 3 unit (assigned to LP & L) and Grand Gulf 1 (initially assigned to MP & L). Grand Gulf was initially projected to cost $1.2 billion for two generating units. Regulatory delays, additional construction requirements, and severe inflation ran up Grand Gulf costs to in excess of $3 billion for one unit. Similar cost over-runs marred the construction of Waterford 3. See Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305, 61,654 (1985). These units produce the most expensive energy on the MSU system. Measured in dollars per kilowatt of generating capacity, the new units were five times costlier than the ANO units installed by AP & L. Most important, although these two plants have been estimated to represent over 70% of the production costs of the MSU system, they apparently will produce only 13% of the electricity used on the system. 30 FERC at 65,121.
Under these conditions, continued application of a capacity equalization scheme that only sought to equalize kilowatts could no longer come close to equalizing investment dollars. Any operating company saddled with responsibility for Waterford 3 and/or Grand Gulf would likely find itself paying far more per kilowatt of capacity than would an operating company that was free of such a burden. 26 FERC at 65,100.
It is true that MSU filed a new System Agreement in 1982 altering its previous equalization scheme. Unlike the 1973 Agreement, which had pegged equalization payments to the cost of the long company’s most recent generating addition, the 1982 Agreement provided for equalization payments based on the long company’s “intermediate” (ie., oil and gas) units. 483-R. 7137-50, VII JA 1589-96. This change reduced the burden on any company that might be both short and have substantial responsibility for the new nuclear plants. But, as discussed below, this change did not eliminate the major inequities that nuclear power introduced to the MSU system.
4. The Grand Gulf plant. The Grand Gulf project was initiated by MSU to meet the then projected demand for electricity by the system as a whole. 26 FERC at 65,101-02. By the late 1970’s, however, it became clear that projected demand would fall well short of previous expectations. Nonetheless, MSU continued to build Grand Gulf 1 on the assumption that the overall cost per kilowatt hour would be less than that of alternative energy sources. 26 FERC at 65,102.
Initially the plant had been assigned to MP & L. It soon became apparent, however, that MP & L did not have the resources to finance the construction of the plant. As a consequence, MSU made a system decision to form Middle South Energy (MSE) in 1974 as a vehicle for financing Grand Gulf. MSE acquired full title to Grand Gulf. In June of 1974 all four Middle South operating companies entered into an “Availability Agreement” under which each operating company put its credit behind Grand Gulf.
Notwithstanding this initial agreement, at the time MSE was first formed no clear plan existed to allocate responsibility for Grand Gulf’s capacity to each of the companies. Over the years various allocation plans were put forward, ultimately resulting in the Unit Power Sales Agreement (UPSA) at issue in this case.
At first it was contemplated that MSE would become a party to the System Agreement. Under this plan all of Grand Gulf would be a “participation unit” and responsibility for the plant’s capacity would shift among the operating companies to the degree they were short. 616-R. 4122-23, II JA 505.
In 1979 MSU officials, having come to the conclusion that a fixed allocation of capacity was preferable to a scheme of shifting responsibilities, recommended a plan that would have allocated a share of Grand Gulf capacity to all of the operating companies. But by early 1980 the MSU officers were moving toward a scheme absolving AP & L of all responsibility for Grand Gulf. In July of 1980 the CEOs of the MSU operating companies signed a Memorandum of Understanding, freeing AP & 1/ of all responsibility for Grand Gulf. Although this Memorandum was never submitted to the Coordinating Committee, and therefore never became final, its basic terms were set forth in a “Reallocation Agreement” executed in July 1981. 616-R. 3275,1 JA 268. Under the Reallocation Agreement AP & L assigned its entitlement to purchase Grand Gulf power to the other companies. In addition, NOPSI, LP & L, and MP & L agreed to indemnify AP & L for any obligation it might incur to MSE’s creditors. The Reallocation Agreement thus relieved AP & L of any responsibility for Grand Gulf capacity costs and provided the basis for the Unit Power Sales Agreement. 26 FERC at 65,103.
The Unit Power Sales Agreement was executed on June 10,1982. Although all of the operating companies are signatories to the UPSA, it only provides for sale of Grand Gulf capacity and energy by MSE to three of the operating companies: LP & L, MP & L, and NOPSI, but not to AP & L. 26 FERC at 65,095.
B. The Proceedings Below
In April 1982 MSU filed with the Commission the 1982 System Agreement, which set the general rules governing transactions between the operating companies, including capacity equalization payments and the rates governing the exchange of energy between the operating companies. FERC set the proceeding for hearing before AU Head. In June 1982 MSU filed the Unit Power Sales Agreement with the Commission, governing the sales of Grand Gulf capacity and energy by MSE to the four operating companies. This proceeding was set for hearing before AU Liebman. AU Liebman issued his opinion on February 3, 1984, Middle South Energy, Inc., 26 FERC 1163,044 (1984), and AU Head issued his opinion a year later, on February 4, 1985. Middle South Services, Inc., 30 FERC ¶ 63,030 (1985). Both decisions touched on the allocation of Grand Gulf Power, and FERC reviewed both decisions in an opinion issued June 13,1985. Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305 (1985). It revisited the issue following petitions for rehearing in an opinion issued September 28, 1985. Middle South Energy, Inc. and Middle South Services, Inc., 32 FERC ¶ 61,425 (1985).
1. ALJ Liebman’s decision in the UPSA case (ER82-616). The principal issue in ER82-616 was whether the UPSA’s proposed allocation of Grand Gulf investment costs was reasonable and, if not, how such costs should be allocated. As a threshold matter, however, AU Liebman rejected a series of arguments suggesting that FERC did not have jurisdiction or statutory authority to amend this aspect of the UPSA.
Having found jurisdiction, AU Liebman found that the UPSA was “unduly discriminatory” under Section 206(a) of the Federal Power Act, 16 U.S.C. § 824e(a) (1982), because it failed to allocate any portion of Grand Gulf’s capacity costs to AP & L. He based this decision on his view of the MSU system as a highly integrated operation that made critical decisions — such as the decision to move into nuclear power — as a unit. Under that view AU Liebman thought it only fair that AP & L pay its share of the company’s decision to build nuclear capacity. Having rejected the UPSA’s allocation of Grand Gulf costs, AU Liebman was faced with three alternatives:
(1) Making Grand Gulf a participation unit, with floating responsibility among the short(er) companies.
(2) Allocating responsibility for Grand Gulf capacity proportionate to each operating company’s relative share of system demand, as fixed in 1982.
(3) Allocating responsibility for Grand Gulf such that each operating company bore a share of the cost of all the nuclear units on the MSU system proportionate to that company’s relative share of system demand, as fixed in 1982.
26 FERC at 65,109.
AU Liebman chose the last proposal. As the Commission noted, this approach did not merely allocate the cost of Grand Gulf. By including the total system investment in nuclear power in his formula, AU Liebman effectively reallocated the costs of all nuclear capacity on the MSU system. 31 FERC at 61,633.
AU Liebman justified his exclusive focus on nuclear capacity costs — rather than on equalizing the costs of all capacity investment or, even more sweeping, equalizing all generating costs — by claiming that the differences among non-nuclear base load generation costs were minor eompared to the cost differences among the nuclear generating facilities. 26 FERC at 65,110. He suggested that even under his proposal AP & L would still have the low- total generation costs on the system, at 65,119. He justified his decision to reallocate costs of Grand Gulf primarily by reference to the fact that the UPSA perpetuated discrimination caused by the timing of nuclear units by forcing the Louisiana and Mississippi ratepayers to pay about four times more for nuclear capacity than the Arkansas ratepayers would pay for their nuclear kilowatts. Id. at 65,107.
2. ALJ Head’s decision in the System Agreement case (ER82-483). The principal issue in the System Agreement proceeding was whether FERC should approve that Agreement as filed or whether it should equalize all or part of the production costs on the system. 30 FERC at 65,120. AU Head also considered a series of arguments militating against FERC jurisdiction over the reallocation of Grand Gulf costs and rejected them.
Having found that FERC had the authority to reallocate production costs, AU Head faced the following alternatives:
(1) Adoption of the System Agreement as filed. This would entail allocating none of the Grand Gulf costs to AP & L and only equalizing the costs of capacity between “long” and “short” companies, with equalization payments pegged to the cost of the long companies’ oil and gas investment costs.
(2) Equalization of production costs. The basic concept, presented by the Louisiana Public Service Commission, was to allocate responsibility for a share of all production costs on the MSU system proportionate to each company’s share of the system’s total load.
(3) Making Grand Gulf a participation unit. This proposal would allocate responsibility for Grand Gulf capacity to each operating company to the degree that the company in question was “short.” Under this scheme responsibility for Grand Gulf capacity would shift over time.
AU Head rejected all of these proposals. He rejected the concept of making Grand Gulf 1 a participation unit primarily because it would allow long companies (e.g., MP & L) to avoid completely the high front-end costs associated with that plant. 30 FERC at 65,166-67. He rejected the equalization proposals on the ground that overall cost equalization would be inconsistent with the general “pattern of autonomy * * * particularly as to * * * specific plant site locations, fuel and financing” that he found characterized the operating companies in the MSU system. Id. at 65,168.
AU Head found support for his finding of a “pattern of autonomy” in two circumstances. First, he stressed that the historic practice in the MSU system was to equalize only excess capacity. Id. at 65,167. Second, he insisted that “generation additions in almost every instance (except for Grand Gulf) were made primarily to satisfy individual company needs.” Id. at 65,168.
AU Head, however, found that Grand Gulf constituted an “anomaly” in the MSU system:
Grand Gulf from its inception was planned, presented to the licensing authorities and constructed as a system plant not only to serve the needs of MP & L but to serve the needs of all the operating companies on the system.
30 FERC at 65,170.
He therefore deemed it appropriate to reject the System Agreement as filed and to allocate the costs of the Grand Gulf investment among all of the operating companies. Unlike AU Liebman, however, he held that this allocation should fluctuate from year to year to track each company’s relative demand for the system’s energy. 30 FERC at 65,172.
3. FERC’s initial decision. In Order No. 234 the Commission summarily affirmed both AUs on the threshold issue of its own jurisdiction to amend the Sales Agreement and the System Agreement. 31 FERC at 61,643-46. On the merits, the Commission affirmed both AUs’ findings that MSU constituted an “integrated electric system.” 31 FERC at 61,645. The Commission, however, specifically rejected AU Head’s finding that the MSU system displayed a “pattern of autonomy” with regard to the planning and construction of generating units. Id.
The Commission conceded that MSU’s system of overlapping officers and directors and the representation of the operating companies on the System Operating Committee gave the operating companies substantial influence in the development of the system’s plans. Id. at 61,646. FERC further observed that the individual companies used their influence to seek the addition of generating units that met their particular needs, and that Section 4.01 of the System Agreement made each operating company responsible for financing the ownership or purchase of the generating capacity necessary to service its customers. Id. at 61,649. The Commission nonetheless concluded that “major critical decisions, including decisions to build new generating units, are made by the Operating Committee for the benefit of the system as a whole.” Id. at 61,646. See also id. at 61,650.
The Commission buttressed its conclusion with the following evidentiary support: (1) Section 4.01 of the 1982 System Agreement provides that the Operating Committee shall “determine” the system generation addition plans; (2) at least five witnesses testified that new units were added to address the needs of the system as a whole, id. at 61,646-48; and (3) the Operating Committee minutes over a twenty-year period revealed that the Committee had the responsibility and the authority to make the “critical decisions” concerning the addition of generating capacity. Id. at 61,648-49.
The Commission’s review of the Operating Committee minutes revealed that the Operating Committee did not merely rubber-stamp the requests of the individual operating companies concerning the addition of generating capacity. Id. at 61,649. The Commission found that the Operating Committee consistently based its generation plans on the needs of the system as a whole. Id. at 61,649-50. It found that the Operating Committee had authority over the general timing, location, and size of plant additions, while the individual operating companies retained authority to fill in the details of such fundamental decisions. Id. Thus FERC stated that there was no evidence in the record that an operating company had ever built a new plant without a recommendation from the Operating Committee or that one had ever refused to carry out such a recommendation. Id. at 61,651.
In light of this finding, FERC rejected AU Head’s contention that Grand Gulf was an “anomaly.” Instead it agreed with AU Liebman that Grand Gulf, like every other generating station, was built to serve the needs of the system as a whole and to attain the system-wide goal of diversifying MSU’s fuel mix. Id. at 61,653. MSE was deemed a mere financing shell that the Commission hypothesized would have been made available to any other operating company that suffered the financial difficulties encountered by MP & L. Id. at 61,654.
The Commission viewed the decision to move into nuclear power as a system-wide decision calculated to meet system-wide needs. It found that MSU’s nuclear project had run afoul of unforeseen economic difficulties that had disrupted the system’s historic rough equalization of generation costs. FERC therefore adopted AU Liebman’s scheme of allocating Grand Gulf costs so that each operating company would contribute proportionately to the system’s investment in nuclear capacity. Id. at 61,655.
4. FERC’s opinion on rehearing. In Opinion No. 234-A FERC clarified its position on the various jurisdictional arguments it had addressed in its initial decision. 32 FERC at 61,943-52. The Commission also addressed — and rejected — the argument raised by various Arkansas parties that FERC lacked jurisdiction as there was no interstate sale of power. The Commission suggested that, whatever the merits of such an argument where a “monolithic” system is concerned, there was no question but that the transfer of power among the MSU operating companies constitutes a “sale for resale.” Id. at 61,957.
Indeed, a major portion of the Commission’s opinion on rehearing was dedicated to clarifying the Commission’s essential finding concerning the “integrated” character of the MSU system. The Commission rejected any attempt to mischaracterize its decision as based on a view that MSU is a “monolith.” Id. at 61,952. FERC simply insisted that, whatever the powers of the individual operating companies, the MSU Operating Committee makes the “major critical decisions on the System, primarily for the System as a whole.” Id. at 61,953 (emphasis in original). The Commission emphasized that its opinion hinged on “a variety of factors including the manner in which decisions are made by the commonly owned affiliates, and for whose primary benefit those decisions are made.” Id. at 61,956.
Turning to the merits, the Commission addressed three challenges to the rationality of its allocation of Grand Gulf costs. It disputed the contention of the Arkansas parties that the allocation violated the spirit and practice of the MSU system, the System Agreement, and the intent of the parties to that Agreement. FERC responded that the clear intent of the System Agreement was to correct major cost imbalances while moving toward a mixed fuel base including nuclear and coal-fired facilities. The Commission insisted that it need not measure the rationality of its allocation from the vantage point of the parties at the time the UPSA was first negotiated. Id. at 61,957-59.
The Commission also addressed the argument of MP & L that the Commission’s order had only exacerbated the discrimination it would have suffered under the original UPSA scheme. MP & L noted that under the UPSA it would have been responsible for 31.63% of Grand Gulf, but under the Commission’s scheme it would be responsible for a full 33%. 31 FERC at 61,-959. Under the new scheme Mississippi would receive only 9.5% of the system’s nuclear capacity while paying for 15% of the system’s nuclear investment. 32 FERC at 61,964 n. 26.
The Commission responded by asserting that the mere fact that FERC’s order increased MP & L’s burden did not make it more discriminatory., It is completely rational, argued the Commission, that a smaller burden can be discriminatory and, with a change in the relative standing of the parties, a larger burden can be fair. The original allocation was discriminatory, in the Commission’s view, because AP & L had failed to share the burden of Grand Gulf. Although the Commission’s order would increase MP & L’s allocation somewhat, it would spread the overall burden of Grand Gulf more equitably by making AP & L carry a portion of the burden.
The Commission suggested that its refusal to reallocate the capacity of all nuclear units (as well as their costs) was justified by the MSU system’s historic aversion to equalizing all costs per kilowatt. Id. at 61,959. It stressed the same point in responding to the arguments of various Louisiana parties that it should have adopted full cost equalization. Id. at 61,961. Thus the Commission depicted its opinion as an attempt to balance
the need to provide an equitable sharing of the investment costs of units that have (or could have) become unforeseeably high due to the unique problems associated with nuclear construction, and the need to recognize the efforts of individual companies on the System and allow them to retain the benefits of units they own to the fullest extent possible.
Id.
Dissatisfied with this rationale, petitioners sought review in this court.
II. Jurisdiction
The petitioners from Arkansas, Missouri and Mississippi raise certain threshold challenges to the Commission’s decision. They contend that FERC lacks jurisdiction to modify the allocation of the capacity costs of Grand Gulf embodied in the Unit Power Sales Agreement (“UPSA”). We disagree, and hold that the Federal Power Act (“FPA” or “the Act”) provides FERC with authority to issue the orders in question. Initially, we will set forth the affirmative basis of FERC’s jurisdiction; thereafter, we will address (and reject) each individual counterargument raised by petitioners.
A. The Jurisdiction of the Commission
Section 201 of the Act contains the Commission’s basic jurisdictional grant. It provides that “[t]he provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce” and that “[t]he Commission shall have jurisdiction over all facilities for such transmission or sale____” This section also defines “public utility” as “any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter.” The facts here reveal that MSE sells Grand Gulfs energy to the affiliated operating companies of the MSU system at wholesale in interstate commerce. Thus, under section 201 of the Act, MSE is a “public utility” and FERC retains jurisdiction over its sales and facilities.
Sections 205 and 206 of the Act set forth the Commission’s remedial authority. Section 205(a) establishes a threshold requirement that all “rates and charges” made by a public utility, and “all rules
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_appel1_1_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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".
Merle R. JENKINS, et al. v. Michael A. STERLACCI, Appellant.
No. 87-7108.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 18, 1988.
Decided June 10, 1988.
As Amended June 21, 1988.
Opinion on Denial of Rehearing Sept. 6, 1988.
Raymond D. Battocchi, Washington, D.C., for appellant.
James R. Treese, Alexandria, Va., for appellees.
Before WILLIAMS, D.H. GINSBURG, and BOGGS, Circuit Judges.
Of the U.S. Court of Appeals for the Sixth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
The question raised by this appeal is whether the district court properly denied appellant’s motion to disqualify a special master who, while preparing a report in this case, represented a client in an unrelated proceeding in which a member of the law firm representing appellant served as opposing counsel. In order to resolve this question, we must assay the degree to which each member of a law firm is charged with knowledge about the activities of every other member of the firm, the ethical responsibilities of a special master, and the standards to be applied by the district court in addressing a motion to disqualify a special master.
I. Background
The underlying dispute in this case arises from the souring of relations among attorneys who had been in partnership. In 1977, the appellant, Michael Sterlacci, and the appellees, Merle Jenkins and Dennis Nystrom, agreed to form a partnership to practice law in Washington, D.C. At the time, Nystrom and Jenkins were principals in a law firm headquartered in Southfield, Michigan. The parties agreed that Sterlac-ci would assume management responsibilities in the Washington office; it was further agreed that he would not play an active role in the legal or managerial affairs of the Michigan office. Administration of the firm was centralized at the Michigan office, which maintained the accounting records of, and paid bills pertaining to, the Washington office. Attorneys practicing out of the Washington office billed their clients directly, but all fees were to be sent to the Michigan office for deposit in a separate account maintained there for the Washington office. The Michigan office generated monthly profit and loss statements for the Washington office.
In December 1981, the parties agreed to close the Washington office after the Michigan partners determined that it was not a promising business venture. A series of financial disputes between the parties, however, prevented the immediate dissolution of the partnership. Unable to negotiate an acceptable distribution of the partnership assets, Nystrom and Jenkins filed suit against Sterlacci in the District of Columbia Superior Court, alleging inter alia, breach of contract and breach of fiduciary duties. Sterlacci removed the action to the district court, invoking its diversity jurisdiction, and counterclaimed in kind.
The district court found that Jenkins and Nystrom were liable for breach of contract to the extent that they failed to implement an agreed-upon compensation formula. The court also found that they breached their fiduciary duties by failing to abide by this formula in their bookkeeping practices. Sterlacci admitted that he had diverted fees from the Washington office’s billings into a local money market account he maintained with a colleague from that office.
The court ordered that a special master be selected under the Commercial Arbitration Rules of the American Arbitration Association, and charged the special master with determining the damages owing to the respective parties. Professor Harold C. Petrowitz of American University was appointed special master. In all proceedings before the district court and the special master, Sterlacci was represented by Raymond D. Battocchi, a member of the law firm of Cole and Groner, P.C.
We now draw our attention closely to the chronology of the end-game. Evidentiary proceedings before the special master were concluded on April 7, 1986; closing briefs were filed on April 23, 1986. On May 2, 1986, with the Sterlacci matter still before him for decision, special master Petrowitz, acting as an attorney on behalf of Radalab, Inc., filed an unrelated administrative appeal with the Office of Hearings and Appeals of the Small Business Administration (“SBA”). Radalab’s appeal challenged a determination that bore significantly on the success of Accusonics Systems, Inc. in securing a government contract. On May 9, 1986, therefore, Walter Fleischer notified the SBA that he represented Accusonics, and that his client wanted to participate as an interested party in Radalab’s appeal. The cases were no longer unrelated, for Walter Fleischer is a member of Cole and Groner, P.C.
On May 22, 1986, Fleischer filed a brief with the SBA opposing Radalab’s appeal. Petrowitz filed a response to Fleischer’s brief, concluding that “[t]he kindest description that can be accorded [Fleischer’s brief], riddled as it is with inaccuracies and specious assertions, is ‘unprofessional.’ ” On June 13, 1986, the SBA rejected Radal-ab’s appeal; whatever the merits of Fleischer’s brief, his position prevailed over that of attorney Petrowitz.
On July 15, 1986, special master Petrow-itz submitted his report in the Sterlacci case to the American Arbitration Association. Sterlacci’s counsel received the report the following day. On July 24, 1986, Sterlacci moved the district court to disqualify the special master and to vacate his report, alleging that Petrowitz’s participation as an attorney in the SBA proceeding raised reasonable doubts about his impartiality as a special master in this case, and that his report demonstrated that actual bias had infected his consideration of the damages issues.
Responding to this motion, the special master “strongly recommend[ed] that the motion be denied,” providing three reasons: (1) the special master could not have known that a member of Cole and Groner was involved in the SBA proceeding until after the initial pleadings had been filed; (2) once he became aware of Cole and Groner’s role in the SBA appeal, he “assumed with complete justification that all partners in the law firm of Sterlacci's counsel would be aware of his [i.e., Petrowitz’s] participation in” the Sterlacci case; and (3) the motion to disqualify was not filed until after his report had issued, raising “[t]he inescapable inference ... that [Sterlacci] and his counsel [were] dissatisfied with the Report ... and [used] an entirely fortuitous circumstance as a basis for avoiding whatever consequences the Report might have.”
The district court denied the motion to disqualify, concluding that there was “no indication of bias and no reason to disqualify the master.” Jenkins v. Sterlacci, C.A. No. 82-2010, Order at 4 (D.D.C. Dec. 16, 1986) (citing Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.1976)). Sterlacci appealed.
II. Appearance of Partiality
The American Bar Association Code of Judicial Conduct for United States Judges, which was approved by the Judicial Conference of the United States, directs a judge to “disqualify himself in any proceeding in which his impartially might reasonably be questioned.” Code of Judicial Conduct for United States Judges Canon 3.C(1); see also 28 U.S.C. § 455(a) (same standard applicable to “any justice, judge, or magistrate of the United States”). The Code further provides that “[a]nyone ... who is an officer of a judicial system performing judicial functions, including an officer such as a ... special master ... is a judge for the purpose of this Code.” Id. at 1-58. Plainly, then, special master Petrow-itz was obligated to disqualify himself in this case if, as Sterlacci argues, his participation might reasonably be regarded as raising the specter of partiality, unless, as Jenkins and Nystrom suggest, the parties effectively waived their objection. See id. Canon 3.D, compare 28 U.S.C. § 455(e) (parties may waive disqualification of judge based on appearance of partiality standard of § 455(a)); see United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir.1985).
A. Standard Applied to Special Masters
The appellees argue that special masters should be held to a lesser standard of conduct than judges because they are subject to “control” by the district court. Within the framework of the Code, we take this argument to mean that a special master’s impartiality cannot as readily be questioned, by virtue of the district court’s supervision — in anticipation of which the master would keep to the straight and narrow path. As we explain more fully below, the district court’s oversight of the special master may indeed be important in cases where actual bias is alleged to have tainted proceedings before the special master. We cannot agree, however, that the control over the special master that a district court exercises is a sufficient basis for holding special masters to a lesser standard of conduct. As the Supreme Court has stated:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); see also Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974) (“[T]he inquiry must be not only whether there was actual bias on [the judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ”) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).
It is this prophylactic protection against bias on the part of “[a]ny one ... performing judicial functions,” expressly including special masters, that Canon 3.C(1) of the Code of Judicial Conduct is designed to achieve. The court’s interest in the administration of justice, and the public’s confidence in the fairness of our judicial system, require no less. We would disserve both causes were we to suggest that some lesser standard may appropriately be applied to special masters by virtue of an imprecise, indeed merely probabilistic, assessment of the effectiveness that district court oversight of a special master’s findings may entail.
The circumstances of this case, which is altogether typical of many cases in which a special master is used, expose the danger of such an approach. Here, a special master was appointed by the district court to assist it in the laborious task of determining the amounts owing to the respective parties from the partnership for the practice of law. Apparently in order to enlist the expertise of an individual familiar with such matters, the court specified that the master, to be chosen by the American Arbitration Association, be a lawyer. That expertise was enlisted in this case to help the court resolve three specific factual disputes: (1) the cumulative net profit of the Washington office; (2) the amount of that profit that Jenkins and Nystrom had already received; and (3) the distribution of partnership assets deposited in the registry of the district court during the pendency of the litigation. Sterlacci, supra, Mem.Op. at 10 (D.D.C. June 21, 1984). The special master’s factual findings on these issues were reviewed by the district court only for “clear error,” as required by Rule 53(e)(2) of the Federal Rules of Civil Procedure. In the face of conflicting evidence, the “clear error” standard insulates a special master’s findings from reversal by the district court unless that court “is left with the definite and firm conviction that a mistake has been committed.” Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 547 F.2d 575, 580 (D.C.Cir.1976) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Thus, even though a special master’s findings may go against what the district court and this court believe to be the weight of the evidence, those findings may nonetheless be upheld. Id. In this respect, the special master occupies a position functionally indistinguishable from that of a trial judge.
Given the complexities of the issues special masters are frequently called upon to sort out, the closely disputed issues of fact they must resolve in the first instance, and the “clear error” standard governing the court’s review of their findings, the district court’s oversight of a special master falls far short of plenary “control”; there is a range within which a special master’s partiality may operate unchecked and uncheckable by the district court. For that reason, it is the special master who must, in the first instance, confront and consider — sensitively and thoroughly— whether personal, professional, financial, or social relationships may so infect his consideration of a case as to create genuine issues about his ability impartially to resolve close and difficult questions of fact. Cf. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C.Cir.1988) (noting that a judge’s assessment of his own impartiality or the possible appearance of impropriety “is not a decision that an appellate panel may make for a district court judge in the first instance.”). In considering questions of disqualification in situations where a special master’s impartiality is called into question, we hold that the special master must hold himself to the same high standards applicable to the conduct of judges. See United States v. Conservation Chemical Co., 106 F.R.D. 210, 234 (W.D.Mo.1985).
We do recognize, however, that unlike judges, special masters are often practicing attorneys. They therefore may wear different hats depending upon the professional function they are performing from one day to the next. In one matter they may be required to observe the impartial decorum of a decisionmaker, while in another they may be called upon to assume the perspective, and the partiality, of an advocate. This duality of roles places a burden on the special master with an active law practice, but its discharge does not require that once he has accepted an assignment as a special master, an attorney place his life as an advocate in a state of suspended animation. Such a requirement would be counterproductive, since many of the best qualified candidates would certainly forego service as a special master if, during that service, they were required to forego completely their private practice. Instead, it is sufficient, and necessary, that an individual who accepts an appointment as a special master scrupulously avoid any undertaking, as an advocate or otherwise, that would tend or appear to compromise his impartiality as a decisionmaker.
B. Waiver of Objection Based on Appearances
In this case, there is no disagreement among the parties that Petrowitz had no way of knowing, when he filed the administrative appeal before the SBA, that he would be opposed by the same law firm that had appeared on behalf of a party in the case over which he was presiding as special master; this point was clearly conceded at oral argument. We may conclude without hesitation, therefore, that the special master’s act of filing the administrative appeal was entirely proper. Any appearance of impropriety occasioned by the master’s participation in the SBA appeal arose only because Cole and Groner, through Fleischer, subsequently appeared as opposing counsel.
Both Fleischer and Battocchi filed affidavits indicating that they were unaware that Professor Petrowitz had donned both the role of decisionmaker and the role of opposing counsel when Cole and Groner entered the SBA proceedings; they became aware of the potential conflict only after the fact, and only because of a happenstance conversation between them. We have not the slightest reason to doubt their account of how the matter came to their attention. The lack of actual knowledge as between members of a law firm, however, is not dispositive of the issue before us. District of Columbia law provides:
Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
D.C.Code Ann. § 41-111 (1981).
Obviously, as counsel for Sterlacci, Battocchi individually knew that Petrowitz was serving as special master in his dispute with Nystrom and Jenkins; and since his representation in that case was undertaken in his capacity as a member of the firm of Cole and Groner, it was a “matter relating to partnership affairs.” We believe, moreover, that Battocchi “reasonably could and should have communicated” to his colleagues at Cole and Groner that he was participating in a proceeding in which Pe-trowitz acted as a special master. In order to avoid problems arising from the representation of clients with adverse interests, it is standard practice for law firms to assure that each partner is aware of the clients and matters with which the firm is involved. It will not unreasonably burden this conflict-avoidance procedure if partners are expected also to notify each other of the special masters before whom they are appearing.
D.C. law thus charges Fleischer with constructive notice of Petrowitz’s role as special master in the Sterlacci case when he entered an appearance on behalf of Accusonics in the SBA proceeding in which Petrowitz was already counsel of record for Radalab. Charged with knowledge of Petrowitz’s potentially conflicting roles, Cole and Groner had to choose between alternative courses of action: either (1) decline to represent Accusonics in the SBA appeal proceeding, or (2) proceed with that representation, after full disclosure to, and agreement by, both Accusonics and Sterlacci, thereby waiving any objection to the special master’s continued participation in Sterlacci based on the appearance of a conflict of interest. The firm could not reasonably suggest that, instead, Petrowitz withdraw from either proceeding because of an appearance of impropriety that it created by its own actions, which were no doubt taken only because of a failure to communicate relevant information within the firm.
The choice between these alternatives was never consciously made, of course, because neither Fleischer nor Bat-tochi was actually aware of the critical details of the matter in which the other was involved on behalf of the partnership. Indeed, even if their firm had an optimally effective conflict-avoidance procedure, there would always be some risk that a partner would lack actual knowledge of such a conflict. Accordingly, it would have been desirable for the special master to have pointed the potential problem out to the respective attorneys when it came to his attention. Indeed, as a special master, Petrowitz was ethically required to make such a disclosure if, as we may fairly assume, his impartiality might otherwise have reasonably been questioned. See Code of Judicial Conduct, supra, Canon 3.D (one disqualified by reason of appearance only may, instead of withdrawing, disclose on record basis of disqualification, which parties and lawyers may waive); 28 U.S.C. § 455(e) (same); American Arbitration Ass’n, Code of Ethics for Arbitrators in Commercial Disputes Canon 11.A-C (1977) (requiring arbitrators to disclose, “at any stage of the arbitration,” any relationships that “might reasonably create an appearance of partiality or bias”). If disclosure had been made, Cole and Groner, and its clients, could have made an informed decision about which of the alternatives open to them would best serve their respective interests. Regrettably, however, the special master assumed away this responsibility, choosing to rely instead on the law firm’s obligation to make all of its members aware of each of its members’ partnership affairs.
This case, therefore, involves complementary failures on the parts of both Cole and Groner and of special master Petrowitz effectively to disclose among themselves the problems created by Fleischer’s participation in the SBA proceeding. While the special master’s failing in this regard is not excusable, neither is it decisive in view of the statutory imputation of knowledge to Cole and Groner. Their objection to the special master’s participation in the Sterlacci case is thus waived to the extent that it rests upon the appearance of impropriety, as opposed to actual bias.
Our conclusion that the objection is waived would stand, even apart from the constructive notice provision of the District of Columbia partnership law, on the extreme untimeliness of the appellant’s motion to disqualify. That motion came only after proceedings before the special master had been completed and the special master’s report had been filed. As we recently held, “[a] motion for recusal based upon the appearance of impropriety can have only prospective effect.” Liberty Lobby, 838 F.2d at 1302 (citing Murphy, 768 F.2d at 1539). A motion to disqualify a special master should be subject to the same limitation.
III. Actual Bias
Sterlacci argues, in the alternative, that the special master should be disqualified, and his report vacated, because the report and the SBA proceedings demonstrate that Petrowitz was actually biased against Cole and Groner, and hence against their client. This portion of appellant’s motion is unaffected by the waiver occasioned by Fleischer’s participation in the SBA proceeding. See Code of Judicial Conduct, supra, at Canon 3.C.(1)(a) (disqualification for “personal bias or prejudice concerning a party”); id. at Canon 3.D (same not waiva-ble); cf. Murphy, 768 F.2d at 1540 (§ 455 read to same effect). Thus, even though a party may have waived any “appearance” problems arising in proceedings before a special master, the district court may, upon motion, properly review a claim of actual bias.
A party alleging actual bias on the part of a judge must prove that claim by evidence of the judge’s extra-judicial conduct or statements that are plainly inconsistent with his responsibilities as an impartial decisionmaker. Liberty Lobby, 838 F.2d at 1301; United States v. Haldeman, 559 F.2d 31, 132-34 & n. 297 (D.C. Cir.1976) (en banc). Because, as we concluded above, special master Petrowitz performed a role functionally indistinguishable from that of a judge, the same standard applies to Sterlacci’s claim that Petrowitz was actually biased against him.
The only evidence of actual bias drawn from extra-judicial sources that Sterlacci has presented to us is in the papers Petrowitz filed with the SBA on behalf of Radalab, Inc. These papers, Ster-lacci contends, “contained unprovoked am-mony and unwarranted personal attacks upon Fleischer,” and thus demonstrate Pe-trowitz’s actual bias or prejudice against Cole and Groner. While the ad hominem aspect of Petrowitz’s filings is a bit unusual, see, e.g., supra at p. 4, we cannot say that cantankerous remarks of this type are clearly beyond the bounds of proper advocacy. There is, moreover, simply no evidence that Petrowitz’s loss, in his professional capacity as an advocate before the SBA, affected him personally, so as to raise a concern that he would try to “even the score” with Cole and Groner in his capacity as the special master in Sterlacci. On average, each attorney suffers a comparable loss in fully one half the contests he enters; in only the rare instance, however, is a lawyer thereafter incapable of respecting his adversaries and maintaining amicable professional relations with them. There is no evidence of that failing chargeable to special master Petrowitz.
On the evidence presented to us, we can conclude nothing more than that Petrow-itz’s involvement in the SBA proceeding as an advocate raised a substantial question as to whether he should have been disqualified on the basis that these activities raised the appearance of a conflict of interest. That objection, as we have shown above, Sterlacci waived.
IV. Conclusion
The district court in this case found “no indication of bias and no reason to disqualify the master.” Having determined that Sterlacci waived any disqualifying appearance of impropriety, we have reviewed with care the specific examples that Sterlacci has cited as evidence of actual bias. We have found that this evidence is not probative of actual bias on the part of the special master. Accordingly, the judgment of the district court is
Affirmed.
. In Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976), the First Circuit stated:
Since special masters ... are subject to the control of the court and since there is a need to hire individuals with expertise in particular subject matters, masters ... have not been held to the strict standard of impartiality that are applied to judges.
For the reasons stated in the text, we find this reasoning unpersuasive; we believe that, at least insofar as special masters perform duties functionally equivalent to those performed by a judge, they must be held to the same standards as judges for purposes of disqualification.
. As we explain below, the untimeliness of the motion to disqualify and the unique circumstances of this case effectively prevented the special master from undertaking a searching inquiry into his ability impartially to resolve the damages issues in this case. We do note, however, that the special master responded thoroughly to appellant’s allegations of actual bias.
. We need not consider the consequences, apart from its effect, if any, on the motion to disqualify, attending the special master’s failure to disclose the potential conflict created by Cole and Groner’s appearance before the SBA. The ethical obligations found in the Code of Ethics for Arbitrators in Commercial Disputes are not enforced through judicial review, as noted therein.
. While we express no view on the firm’s responsibilities to its clients, we recognize that the clients’ interests are among those most immediately to be protected by effective communication among members of a law firm and timely disclosure of possible conflicts of interests.
. In United States v. Murphy, the Seventh Circuit intimated that where the facts surrounding a judge’s possible conflicts are or should be known by the parties in a case before that judge, disqualification based on the appearance of partiality may be waived, even though the judge makes no attempt to disclose the potential conflict. Murphy, 768 F.2d at 1540-41. We believe the same rule should be applied to a knowledgeable party before a non-disclosing special master, although we reiterate that disclosure should have been made.
. Counsel for appellant forthrightly drew the attention of the court to this recent precedent, which was decided after the close of briefing, but counsel made no attempt to distinguish the case.
. Not surprisingly, the special master's report, on its face, contains no evidence of actual bias stemming from extra-judicial sources. Sterlacci argues nonetheless that the report provides probative evidence of actual bias because it "resolves virtually every disputed issue against [him], and arrives at an ultimate award to him which is unreasonably low.” Sterlacci apparently argues, in other words, that the findings in the report can be related to an extra-judicial source of prejudice, namely, Petrowitz’s advocacy before the SBA. Thus, Sterlacci would have us engage in a more painstaking review than the "clear error” standard of Rule 53 mandates.
Even if such review were appropriate, and we are convinced that it is not, Sterlacci’s claim must fail. As a means of establishing actual bias, a court's efforts to relate a master’s findings to extra-judicial actions that are sufficient to raise a substantial question about disqualification on the basis of appearances, but are insufficient in themselves to establish actual bias, would ultimately require a judgment too refined and much too calibrated in its distinctions to be practical. Such an undertaking would inevitably become an exercise in judicial speculation. Speculative conclusions of bias are, however, ultimately nothing more than conclusions deduced from "appearances.” Sterlacci has waived objections based on appearances, and they cannot be resurrected under the guise of "actual” bias.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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".
J. F. GALLEGLY, Appellant, v. P. B. WHITE, Trustee in Bankruptcy for General Mower Corporation, Appellee.
No. 9416.
United States Court of Appeals Fourth Circuit.
Argued June 19, 1964.
Decided June 24, 1964.
Howard I. Legum, Norfolk, Va. (Fine, Fine, Legum, Schwan & Fine, Norfolk, Va., on brief), for appellant.
Kenneth H. Lambert, Jr., Norfolk, Va. (Williams, Cocke, Worrell & Kelly and Thomas R. McNamara, Norfolk, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and MICHIE, District Judge.
PER CURIAM:
The plaintiff in this tort action has appealed from an adverse judgment entered upon a verdict of a jury for the defendant. The plaintiff objects to the admission of certain evidence into the case and to the Court’s charge. We find in the entire trial, however, no error affecting any substantial right of the plaintiff.
Affirmed.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Amadore PORCELLA, a citizen of the Republic of Italy, Plaintiff-Appellant, v. TIME, INC., a New York corporation, Defendant-Appellee.
No. 13389.
United States Court of Appeals Seventh Circuit.
Feb. 28, 1962.
C. A. Caplow, Rudolph A. Visalle, Paul M. Smith, Jr., Chicago, Ill., for plaintiff-appellant.
Don H. Reuben, Howard Ellis, George D. Newton, Jr., Chicago, Ill., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel, for defendantappellee.
Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Amadore Porcella, a citizen of the Republic of Italy, plaintiff, appeals from a judgment of the district court granting the motion of Time, Inc., a New York corporation, defendant, dismissing plaintiff’s cause at his costs, on the ground that his complaint fails to state a claim upon which relief may be granted.
The parties are in agreement that the substantive law of Illinois governs in this case.
According to his brief, plaintiff, an art expert, brought this action for libel against defendant, publisher of Life, a weekly magazine, to recover damages resulting from an article published in the issue of December 7, 1959, wherein allegedly libelous language concerning plaintiff in his professional capacity as an art expert imputed to him lack of skill and competence, as well as dishonesty, trickery and misconduct, to the injury and damage of plaintiff’s reputation as an art expert.
The court ruled that the language is not libelous within the meaning of the innocent construction rule, and that the language complained of constituted fair comment.
According to plaintiff, the article pertained to the discovery of certain paintings in California which were attributed to certain old masters by plaintiff in his capacity and profession as an art expert.
In the. interest of complete accuracy we set forth the article:
WHAT IS SO RARE AS A RARE FIND?
California produces the latest reasons for viewing “Old Masters” suspiciously.
The news item from California was a rarity even in that land of overnight fairy-tale fortunes. Ten paintings, owned by Italian immigrants in Pasadena, were said to be Old Masters worth millions of dollars—“the greatest art find of the century!” This was the latest of a long line of “fabulous discoveries” that have burst upon the art world in recent years. The California canvases had long been in the Naples family of Maria and Alfonso Folio. When Maria married a GI, she brought them to her new home in Pasadena and tucked them away in a closet and under a bed.
A year ago Alfonso Folio, a TV repairman who had come to live with his sister, dropped in at the neighborhood electrical supply store of Charles and Jay di Renao and invited them to come up and see the family paintings some time. The Di Renzos came, saw and promptly made a deal with the Folios to help sell the art. Their first step: to find an expert to identify the paintings. They telephoned one Amadore Porcella, an Italian who had just authenticated a Raphael in Chicago.
Hurrying out to Pasadena, Porcella took one ecstatic look at the paintings and pronounced them masterpieces. One, he said, was a long-lost painting (above) by the 17th Century Italian master, Caravaggio, and he valued it at more than $1 million. Porcella then called in his friend, Alexander Zlatoff-Mirsky, a Chicago art restorer, for some heavy work. After a few weeks of working with “powerful solvents,” Zlatoff-Mirsky declared the paintings almost as good as new and ready for unveiling.
Shortly after the “masterpieces” were made public, ominous doubts began to gather about their authenticity. A Pasadena expert said he had seen the paint-tings several years ago and found them worthless. A New York scholar said the long-lost Caravaggio was known through authentic copies (opposite, top) and bore no resemblance to the Pasadena work. Finally an Italian priest disclosed that the Folios’ so-called Caravaggio was in fact a copy of a minor 17th Century painting (center) which hangs in Naples. The California fairy tale was showing signs of being just that.
BUSY TEAM AND ITS THRIVING OUTLET
Discovering a trove of valuable Old Masters would be a once-in-a-lifetime stroke of luck for most mortals. But Porcella and Zlatoff-Mirsky have, as one of their friends observed, a “remarkable talent” for it. Just in the course of the past year they have authenticated more than a dozen “masterpieces.”
The pair’s instinct for art showed up early. Porcella started out to be a painter in Rome. At the age of 17, he explains, he switched to art criticism. Around 1934 he worked briefly at the Vatican gallery (compiling a guidebook of the art collection). Since then he has written a number of books and “authenticated” innumerable paintings. Zlatoff-Mirsky worked as a painter in Russia until the 1930s when he migrated to Chicago and took up the more remunerative profession of restoring art.
In 1958 the two “experts” met for the first time in New York. Soon after, Porcella went to Chicago and settled down in Zlatoff-Mirsky’s studio to inspect the paintings which the Russian was restoring. In a short time they identified “millions of dollars” worth of art, tagged with such top-drawer names as Leonardo da Vinci, Rembrandt and Raphael.
The dual role of source and thriving outlet for most of the team’s discoveries is played by the Sheridan Art Galleries, a Chicago auction house which specializes in old and modern “masterpieces.” For the past 20 years their highly prized consultant and art restorer has been none other than Zlatoff-Mirsky. Recently the gallery’s reputation was slightly tarnished when two buyers proved that the paintings they bought there were fakes. The gallery refunded the complainants’ money, later sold one of the paintings for an even higher price.
THE INS AND OUTS OF AUTHENTICATING
Active as they are, Professor Porcella and his colleague Zlatoff-Mirsky have not cornered the art “discoveries” market. Rival authenticators continue to turn up, armed with new-found treasures and long-lost masterpieces. Some of them are reputable authorities. Others are “experts” with elusive or spurious credentials. Whatever their background, many authenticators seem to be in the business at least as much for love of money as love of art.
How much an authenticator makes depends generally on the importance of the painter’s name and the authenticator’s evaluation of the particular painting. An expert is inclined to charge more for recognizing a Leonardo than a Lastman. Often the price of authenticating a painting far exceeds the amount paid for the work. Porcella received $2,000 for authenticating a work that was bought for half that price (left). Professor Erik Larsen received $550 for certifying a painting that originally cost his client $20 (opposite).
To enhance their prestige and give validity to their judgment, authenticators often publish books or articles reproducing their “discoveries.” But their talent for writing is apt to show up best in the flamboyant certificates they compose for their “masterpieces.”
The more unscrupulous authenticators have found a bonanza in providing income tax outs. A buyer who pays $1,000 for an old painting may call upon an “expert” to evaluate his purchase. For a comfortable fee, the “expert” values the painting at many times its actual worth. The buyer then donates the painting to a museum or some other institution, thereby getting a sizable write-off on his income tax for his charitable donation.
So far in the U. S. there are no legal penalties for such dealings. The quasi experts are not held responsible for their authentications. The auction houses are not required to back up the authenticity of the works they sell. And with the art market currently enjoying its biggest boom, the flood of dubious “masterpieces,” both old and new, is sure to continue.
Several photographs and printed explanations appeared with the article.2
1. The question arises in this case as to what extent public comment may be made about plaintiff in the practice of his profession as an art expert, in the course of which, as he alleges in his complaint, he renders “expert counsel, advice, opinions, evaluations and authentications pertaining to paintings, drawings and related works of art, to art museums, art collectors, art dealers and persons possessing such works of art.” Plaintiff claims “a reputation for professional skill, competency and proficiency as an art expert in the eyes of the public.”
We know of no governmental control of this profession, or requirement that a diploma or other authorization from any seat of learning must have been held by plaintiff.
Certainly plaintiff would be entitled, as any other person would be, to redress against any false statements of fact maliciously published in regard to him. However, in his complaint, as explained in his brief, ante 1, plaintiff’s denial of the truth of the statements in the article has been limited to those charging or implying that plaintiff is not a qualified and recognized art expert and those imputing to plaintiff, as an art expert, a lack of skill, competence and fitness, as well as dishonesty, trickery and misconduct.
It is these statements which plaintiff charges defendant “wilfully, recklessly and maliciously wrote, edited * * * published * * * ”.
In addition to plaintiff’s own admission that he occupied a position in a public field, it is obvious that as an expert he was able in the appraising of works of art to not only have an effect upon the market for the paintings and the prices paid therefor, but he also was in a position to appraise art donated by patrons for charitable purposes, who thereby would be the beneficiaries of tax deductions under the tax laws of the United States. In the latter activity he was in a position to leave his imprint upon the federal government’s collection of revenue from the public.
Our analysis of the alleged libelous article convinces us that, insofar as the complaint charged it to be false, it is an expression of the publisher’s comments and opinions upon the activities of plaintiff as an art expert with a description of the entire setting in which he was active. It might well be characterized as a satirical recital by an author who made no effort to conceal his belief that there were some authenticators of paintings less reliable than others. The article, insofar as it offended plaintiff, merely expressed the author’s opinion, rather than made a false statement of any fact. Plaintiff was engaged in a field which he admits (and even boasts) was in the public domain and, as such, he was subject to comment by the public press as to his activities in that field. Certainly there are no facts alleged to even suggest any personal animus between him and defendant in this ease.
Because of the public nature of plaintiff’s activities and the controversial question as to the genuineness of the alleged work of old masters, it is for the court to decide whether the publication was reasonably capable of the meaning ascribed to it by plaintiff. Kulesza v. Chicago Daily News, Inc., 311 Ill.App. 117, 125, 35 N.E.2d 517.
In Brewer v. Hearst Publishing Co., 185 F.2d 846, at 850 we said:
“The publications in the instant case are fair comment and criticism on a matter of public interest and as such are not actionable. The essential elements of fair comment in order to be deemed not actionable are: (1) that the publication is an opinion; (2) that it relates not to an individual but to his acts; (3) that it is fair, namely that the reader can see the factual basis for the comment and draw his own conclusion; and (4) that the publication relates to a matter of public interest.”
2. Moreover, in the ease at bar, we are required to apply the rule recognized in Illinois as the innocent construction rule.
As we said in Crosby v. Time, Inc., 254 F.2d 927, at 929:
“The so-called innocent construction rule, that is, if language is capable of innocent construction it should be read and declared non-libelous, is firmly established in Illinois. La Grange Press v. Citizen Pub. Co., 252 Ill.App. 482, 485; Dilling v. Illinois Publishing and Printing Co., 340 Ill.App. 303, 306, 91 N.E.2d 635; Parmelee v. Hearst Pub. Co., Inc., 341 Ill.App. 339, 343, 93 N.E.2d 512; Epton v. Vail, 2 Ill.App.2d 287, 119 N.E.2d 410. In the latter case, the Court in dismissing a complaint stated (opinion not published) :
“ ‘The language must receive an innocent construction when susceptible of such interpretation and cannot by innuendo be extended beyond a reasonable construction. [Citing cases.]’ ”
More recently, in John v. Tribune Company, Jan. 23, 1962, 181 N.E.2d 105, the Illinois Supreme Court said:
“We further believe the language in defendant’s articles is not libelous of plaintiff when the innocent construction rule is consulted. That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law. Although this court has not heretofore expressed the rule, it has been adopted and applied by our Appellate Courts and by Federal Courts sitting in Illinois. * * * ”
We hold that the district court correctly ruled that the article is not libelous within the meaning of the innocent construction rule and that the language complained of constituted fair comment.
For these reasons the judgment from which this appeal has been taken is affirmed.
Judgment affirmed.
. In this opinion, unless otherwise indicated, the word “article” refers to the alleged libelous article.
. In Dilling v. Illinois Publishing & Printing Co., 340 Ill.App. 303, 91 N.E.2d 635, 637, which was a libel action, the court said:
“According to the allegations of her complaint, plaintiff sought public support and patronage, thus inviting public criticism. The fact that defendants were reporting and commenting on a matter of public interest appears from the complaint. Hence, defendants’ right of fair comment in a matter of public interest was properly presented for determination by their motion to dismiss, and it was unnecessary to plead this right as an affirmative defense. Manifestly the executive committee of the California American Legion does not share plaintiff’s views on Americanism. In our view this expression of difference of opinion as reported in the article here complained of is not actionable per se.”
These explanations (designated alphabetically) are:
(a) THE “DISCOVERY” in Pasadena was labeled Caravaggio’s long-lost painting of Mary Magdalene by the Folios’ so-called experts. Other well-known authorities say that the stiff figure and the murky landscape are unlike the art of Caravaggio.
(b) THE ORIGINAL from which the Pasadena painting was probably copied hangs in the art gallery of the Gerolomini Friars in Naples. It was not done by Caravaggio, according to Father Antonio Bellucci (above, talking to TV interviewer) but probably by an undistinguished contemporary name Gian Battista Caraceiolo, who was called “Battistello.” The work has hung in this gallery for 300 years. The subject of the Magdalene was popular with painters of the Baroque period.
(c) ALTHOUGH A COPY, this is what Caravaggio’s still-lost Magdalene looked like. It was made by Dutch artist a few years after Caravaggio painted his picture. This is in Barcelona. Another copy made in 1612 by a Flemish artist, is in Marseilles.
(d) OWNERS OF “MASTERPIECES” are Alfonso Folio (second from right), his sister Maria and her husband Chester Hataburda (left). Here they talk to lawyer Lester Olson about their personal dispute with their partners, the di Kenzos.
(e) DISPLAY of name artists at tbe Sheridan Art Galleries in Chicago is supervised by the director, Jack Shore (above). The paintings have been labeled as (right, from top) a “Poussin,” “Rembrandt,” and “Steen”; (center, from top) “Correggio,” “Metsys” and a “Leonardo da Vinci” which is held by Shore.
(f) REPAIR SHOP for “masterpieces” is the studio of Alexander Zlatoff-Mirsky (right) who sports artist’s beret when he is on the job. He is surrounded by paintings which he discovered and Porcella authenticated. They include a “Rubens” (left, middle), “El Greco” (left, bottom), “Van Dyck” (center).
(g) AUTHENTICATOR Amadore Poreella inspects a painting in his Rome apartment. In foreground are photographs of controversial paintings in Pasadena.
(h) COMPARISON of Pasadena painting which Porcella attributes to Luca Giordano with an authentic Giordano in Florence reveals few similarities, many striking differences. Pasadena picture (left), showing centaur carrying off Hercules’ wife, seems based on Giordano’s Rape of Persephone (detail, right). But ungainly poses, theatrical faces and claw-like hands in Pasadena work indicate it was done by an unskilled follower of the 17th Century master.
(i) AUCTION VICTIM, Richard Feigen, bought painting (right) which Sheridan Art Galleries attributed to modern master, Paul Klee. Feigen, a Chicago art dealer, cheeked work with two Klee 'experts who identified it as a forgery. He then returned picture to the Sheridan galleries and got his money back.
(j) BUYER J. P. De Laney hired Porcella and Larsen to identify purchase. Porcella labeled it Giorgione; Larsen, a del Piombo. Others doubt both labels.
(k) DISCOVERER Maurice Goldblatt attributes latest “find” to Raphael’s father, Giovanni Santi. Goldblatt has authenticated art for Sheridan galleries.
(l) MEDIUM was called into the act by Antonio Folio, brother of the Pasadena Folios, to give advice on his family’s paintings. In a table-tipping session in Naples, medium (above, right) professed to have made contact with 18th Century prince. Prince said that the paintings are worth “millions of dollars.”
(m) .BEAMING BENEFICIARIES of an “art treasure” are children of Mr. and Mrs. Alex Schiffelbian Jr. of Center Moriches, N. Y., whose future education is partly tied to painting of Magdalene on wall. Schiffelbians bought painting in furniture shop in Northport for $20. They showed it to Professor Erik Larsen of Georgetown University who declared it was long-lost Van Dyck worth at least $15,000. Other experts reject his attribution — underlining the problems in this controversial field.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TERRY COACH INDUSTRIES, INC., Respondent.
No. 22715.
United States Court of Appeals Ninth Circuit.
May 1, 1969.
Allison W. Brown, Jr., Washington, D. C. (argued), Ralph E. Kennedy, Director, NLRB, Los Angeles, Cal., Arnold Ordman, Gen. Counsel, Dominick L. Ma-noli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Franklin C. Milliken, Atty., Washington, D. C., for petitioner.
Hugh J. Scallon (argued), Gibson, Dunn & Crutcher, Levy, DeRoy, Geffner & Van Bourg, Los Angeles, Cal., for respondent.
Before CHAMBERS and DUNIWAY, Circuit Judges, and VON DER HEYDT, District Judge.
The Honorable James A. von der Heydt, United States District Judge for the District of Alaska, sitting by designation.
PER CURIAM:
On May 3, 1966, a strike occurred at the plant of Terry Coach Industries in El Monte, California. Not all of the company’s employees participated, and the plant was not closed. As might be expected, some friction developed between strikers and non-strikers, and between strikers and third parties having business at the plant. When the strike ended on May 11, the company rehired all but six of the strikers. These six the management believed guilty of serious misconduct during the strike.
Subsequently, proceedings were begun before the National Labor Relations Board which resulted in an order that Terry Coach reinstate Willis Smith, one of the six, with full back pay. Terry Coach Industries, Inc., 166 N.L.R.B. No. 76 (June 30, 1967.) The present petition, to enforce that order, followed.
The strike in question was economic in nature, and it was stipulated that Smith had not been replaced at the time he sought reinstatement. The Board found as fact certain relatively minor acts of misconduct on Smith’s part, which it concluded did not justify refusing to reinstate him. We agree. However, the Board refused to find as fact certain alleged acts of misconduct of a more serious nature. Thus the issue before us is the 'accuracy of the Board’s findings of fact.
The scope of our review in such matters is limited. “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” National Labor Relations Act, 29 U.S.C. § 160(e) (1964). While that standard of “substantial evidence” does not make of this court a rubber stamp for approving the Board’s findings, it does mean that where the evidence as a whole will reasonably support the Board’s findings, we may not deny enforcement, even though this court might reach an opposite conclusion were we to determine the matter de novo. N. L. R. B. v. Stanislaus Implement & Hardware Co., 226 F.2d 377, 381 (9th Cir. 1955). This is particularly true of questions involving the credibility of oral testimony. N. L. R. B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir. 1967).
We have examined the record with care, and have concluded, on the record as a whole, that sufficient grounds exist to support the Board’s determination, and to satisy the statutory test of “substantial evidence.”
The Board’s order is enforced.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
UNITED STATES v. CARDIFF.
No. 27.
Argued November 17, 1952.
Decided December 8, 1952.
James L. Morrisson argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Carl H. Imlay and William W. Goodrich.
John Lichty argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
Respondent was convicted of violating § 301 (f) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, 21 U. S. C. § 331 (f). That section prohibits “The refusal to permit entry or inspection as authorized by section 704.” Section 704 authorizes the federal officers or employees “after first making request and obtaining permission of the owner, operator, or custodian” of the plant or factory “to enter” and “to inspect” the establishment, equipment, materials and the like “at reasonable times.”
Respondent is president of a corporation which processes apples at Yakima, Washington, for shipment in interstate commerce. Authorized agents applied to respondent for permission to enter and inspect his factory at reasonable hours. He refused permission, and it was that refusal which was the basis of the information filed against him and under which he was convicted and fined. 95 F. Supp. 206. The Court of Appeals reversed, holding that § 301 (f), when read with § 704, prohibits a refusal to permit entry and inspection only if such permission has previously been granted. 194 F. 2d 686. The case is here on certiorari. 343 U. S. 940.
The Department of Justice urges us to read § 301 (f) as prohibiting a refusal to permit entry or inspection at any reasonable time. It argues that that construction is needed if the Act is to have real sanctions and if the benign purposes of the Act are to be realized. It points out that factory inspection has become the primary investigative device for enforcement of this law, that it is from factory inspections that about 80 percent of the violations are discovered, that the small force of inspectors makes factory inspection, rather than random sampling of finished goods, the only effective method of enforcing the Act.
All that the Department says may be true. But it does not enable us to make sense out of the statute. Nowhere does the Act say that a factory manager must allow entry and inspection at a reasonable hour. Section 704 makes entry and inspection conditioned on “making request and obtaining permission.” It is that entry and inspection which § 301 (f) backs with a sanction. It would seem therefore on the face of the statute that the Act prohibits the refusal to permit inspection only if permission has been previously granted. Under that view the Act makes illegal the revocation of permission once given, not the failure to give permission. But that view would breed a host of problems. Would revocation of permission once given carry the criminal penalty no matter how long ago it was granted and no matter if it had no relation to the inspection demanded? Or must the permission granted and revoked relate to the demand for inspection on which the prosecution is based? Those uncertainties make that construction pregnant with danger for the regulated business. The alternative construction pressed on us is equally treacherous because it gives conflicting commands. It makes inspection dependent on consent and makes refusal to allow inspection a crime. However we read § 301 (f) we think it is not fair warning (cf. United States v. Weitzel, 246 U. S. 533; McBoyle v. United States, 283 U. S. 25) to the factory manager that if he fails to give consent, he is a criminal. The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid (cf. United States v. Cohen Grocery Co., 255 U. S. 81) may be as much of a trap for the innocent as the ancient laws of Caligula. We cannot sanction taking a man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to withhold. That would be making an act criminal without fair and effective notice. Cf. Herndon v. Lowry, 301 U. S. 242.
Affirmed.
Me. Justice Jackson concurs in the result.
Mr. Justice Burton dissents.
The violation is made a misdemeanor by 21 U. S. C. § 333.
Section 704 reads as follows: “For purposes of enforcement of this Act, officers or employees duly designated by the Administrator, after first making request and obtaining permission of the owner, operator, or custodian thereof, are authorized (1) to enter, at reasonable times, any factory, warehouse, or establishment in which food, drugs, devices, or cosmetics are manufactured, processed, packed, or held, for introduction into interstate commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such food, drugs, devices, or cosmetics in interstate commerce; and (2) to inspect, at reasonable times, such factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, containers, and labeling therein.”
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Samuel ROSENCRANZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Anthony DiPIETRO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Nos. 6594, 6611.
United States Court of Appeals First Circuit.
Heard Dec. 6, 1965.
Decided Feb. 7, 1966.
Joseph J. Balliro, Boston, Mass., for appellant Samuel Rosencranz.
Casper Tevanian, Portland, Me., for appellant Anthony DiPietro.
William E. McKinley, U. S. Atty., with whom David G. Roberts, Asst. U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
These appeals arise from the joint trial and conviction of two alleged conspirators indicted for the operation of an illegal still in violation of federal internal revenue laws. The critical issue is whether there was probable cause to issue a search warrant.
I
On March 24, 1962, prior to 3 a. m., Richard K. Weller, Investigator-in-Charge of a branch office of the Alcohol Tax Division of the U. S. Treasury Department, presented and executed before a U. S. Commissioner an affidavit for a search warrant, alleging that he had reason to believe that on certain farm premises on Ash Swamp Road in Scarborough, Maine, were being concealed mash, distillation apparatus, and non-tax paid alcohol, in violation of 26 U.S.C. § 5601. The warrant was issued and, at 5:45 a. m., the same day, Weller and other officers entered the barn on the premises, found a still, seized equipment and supplies used in the making of alcohol, and arrested two men (not appellants) found at the site.
The validity of the search warrant was attacked by appellants in motions to suppress the evidence resulting from the search. The government, in turn, challenged their right to attack on the dual grounds that neither the persons nor the property affected by the search fall within the protection of the Fourth Amendment. After evidence and argument, the district court denied the motions in an opinion dated May 19, 1965, D.Me., 241 F.Supp. 933.
As to standing, we hold that appellants can invoke the Fourth Amendment on the undisputed fact that appellant DiPietro was the legal owner of the premises. While he was as absentee, reluctant, unknowledgeable, and uninterested an owner as may be imagined, he was still the only holder of legal title to the premises. He was also the owner of such distilling apparatus as, under the applicable law as to fixtures, had become part of the real estate. And we have seen no authority for the proposition that the owner of premises who has not given exclusive use to another does not have standing. See Jones v. United States, 1960, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697. If DiPietro has standing, then, under McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, appellant Roseneranz also shares in the shelter of the Fourth Amendment.
That such an absentee holder of legal title as appellant DiPietro should have standing to invoke the Fourth Amendment does not offend us as creating constitutional rights by “subtle distinctions developed in the law of real property”, as government counsel argues. As this case demonstrates, the purchase and ownership of real property with very little more can be significant links involving the owner in the chain of an alleged conspiracy. It does not seem unfair to allow the fact of ownership, which is used by the government against a defendant, to be used by that defendant to invoke constitutional rights.
The government also contends that the premises searched — the barn-do not come within the protection of the Fourth Amendment. This amendment speaks of the “houses” of persons, which word has been enlarged by the courts to include the “curtilage” or ground and buildings immediately surrounding a dwelling, formerly usually enclosed. The reach of the curtilage depends on the facts of a case. In this case the government points out that appellants have not supplied us with more than the most meager facts (see footnote 1, supra). The only additional factual description is as follows. The Treasury agent who led the search said, “it was a small farm with dwelling house and barn to the left as you faced the premises”. He also testified that tracks of vehicles and footprints were visible on the snow, leading to both house and barn; he decided to enter the barn first because the signs of traffic were somewhat heavier. Other witnesses said there was a driveway between the barn and the dwelling house. This suggests propinquity and absence of separating barriers. While the evidence before us is sparse, it is at least as persuasive as that in Walker v. United States, 5 Cir., 1955, 225 F.2d 447, where a barn was held within the curtilage, although it was seventy to eighty yards from a house, and was surrounded by a fence. See also Taylor v. United States, 1931, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; United States v. Mullin, 4 Cir., 1964, 329 F.2d 295. We hold that the premises searched were within the coverage of the Fourth Amendment.
The search warrant is attacked for the following alleged defects in the underlying affidavit: that anonymous information is not an adequate basis; that the affiant was not found qualified to know the odor of mash; that the affiant did not identify the odor of mash as emanating from the premises; and that the times of receipt by the affiant of information from his informant and of his detection of the odor were not stated in the affidavit.
We shall consider these arguments against the background of constitutional policy and guidelines to carry out that policy, which have evolved as the courts have wrestled with the problem of respecting both the constitutional rights of individuals and the reasonable needs of law enforcement. The policy is to encourage officers of the law to seek to the fullest extent feasible the objective judgment of a magistrate on the probability that a crime is being committed before permitting entry on the property of private citizens.
The device of this intervening step between clues and search is calculated to substitute the inferences of a neutral and detached magistrate for the inferences of a committed officer in the heat of ferreting out crime. Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436.
This policy, in the interests of the civil liberties of all the people protected by the Fourth Amendment, is bulwarked by rather precise supporting guidelines, which may bear heavily on individual defendants. These guidelines include the following: evidence need be only so much as to persuade a man of reasonable caution to believe a crime is being committed, Brinegar v. United States, 1949, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; the finding of “probable cause”, while demanding more than mere suspicion, Draper v. United States, 1959, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327, requires less evidence than would justify conviction, Locke v. United States, 1813, 7 Cranch 339, 348, 3 L.Ed. 364, and less than would justify an officer in making a search without a warrant, Johnson v. United States, supra, 333 U.S. at 13, 68 S.Ct. 367; the evidence itself need not be legally competent in a criminal trial, Draper v. United States, supra, 358 U.S. at 311, 79 S.Ct. 329, and may in fact be hearsay, Jones v. United States, supra, 362 U.S. at 272, 80 S.Ct. 725, so long as the magistrate is informed of some underlying circumstances supporting the affiant’s conclusion and his belief that any informant involved was credible or his information reliable, Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; the commissioner is entitled to draw reasonable inferences from the facts contained in the affidavit based on his experience in such matters, Irby v. United States, 1963, 114 U.S.App.D.C. 246, 314 F.2d 251, 253, cert. denied, 374 U.S. 842, 83 S.Ct. 1900, 10 L.Ed.2d 1064, while only the information in the affidavit is relevant in reviewing the magistrate’s judicial action issuing a warrant, United States v. Casino, 2 Cir., 1923, 286 F. 976, such an affidavit must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, United States v. Ventresca, 1965, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d, 684; and, finally, the commissioner’s finding “is itself a substantial factor”, United States v. Ramirez, 1960, 2 Cir., 279 F.2d 712, 716, cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74, and in marginal cases, where there is doubt whether an affidavit demonstrates the existence of probable cause, the resolution should be “largely determined by the preference to be accorded to warrants”, United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746.
Following this constitutional policy and these judicial guidelines, particularly as urged by Ventresca, we shall now consider the alleged defects in the affidavit.
We are not troubled by affiant’s receipt of information from an anonymous informant. The case before us is, in this respect, stronger than both Aguilar and Jones, where the only basis for the warrant was hearsay information. In this ease the hearsay evidence is buttressed by the personal observation of the affiant. It is analogous to Draper, where hearsay information which had no earmarks of credibility was confirmed by the observations of the officer.
Nor are we concerned by the state of the evidence before the magistrate as jo. the odor of mash outside the premises. The affiant in this case, while described in the affidavit as a “Criminal Investigator”, was actually the Investigator-in-Charge of a local office of the Alcoholic Tax Division of the Treasury Department. In either event, such credentials and the distinctive odor of mash have passed the surveillance of many courts. See, e. g., Monnette v. United States, 5 Cir., 1962, 299 F.2d 847. Cf. Chapman v. United States, 1961, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Johnson v. United States, supra, 333 U.S. at 13, 68 S.Ct. 367; Steeber v. United States, 10 Cir., 1952, 198 F.2d 615, 33 A.L.R.2d 1425. Indeed, we have seen no case standing for the proposition that a magistrate was unreasonable in considering a person in affiant’s position qualified to detect the odor of mash.
But appellants go beyond the qualifications of the affiant and the distinctive nature of the odor, and say that a mere allegation that the odor was detected “outside the premises” was defective in failing to say that the odor “emanated from the premises”. In the case before us, the magistrate could have reasonably given weight to two factors. The first is that the premises described in the warrant were a house and barn on Ash Swamp Road, three-tenths of a mile from an intersection. He could conclude that the area was rural and sparsely populated. The second is that the odor was described as a “strong” one. The magistrate could therefore properly conclude that the odor came from the premises described rather than from adjoining property. This was not a congested metropolitan area, where odors could conceivably originate in any one of a number of dwellings. In Monnette v. United States, supra, 299 F.2d at 849 n. 3, an affidavit was upheld which said, “ * * * I distinctly smelled the odor of fermenting mash emanating from these premises.” To make much of the words “fermenting” and “emanating from” would be to engage in the “elaborate specificity” enjoined by Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741.
This brings us to the most serious defect in the affidavit — the absence of any averment as to the time when the affiant received information from his anonymous informant or as to the time when affiant detected the odor of mash. Nor is there anything in the affidavit which hints of time except the use of the present tense in connection with the informant’s report to affiant.
There is little question but that, before Ventresca, supra, this defect would have been fatal. We summarize the authorities in the margin. The very fact that there are not more cases involving affidavits without an averment of time of observation may be taken as evidence of the wide acceptance by public officers and magistrates of this requirement.
The difficult question before us is whether Ventresca compels or permits our upholding of the search warrant in these appeals. The Supreme Court made it perfectly clear that while underlying circumstances must be recited, affidavits should be construed in a commonsense manner and that doubtful cases should be resolved in favor of the warrant. The district court after calling for argument specifically addressed to the implications of Ventresca, and being guided by its reading of that case, denied the motions to suppress evidence.
It reasoned that the first fact in the affidavit — the information received from the informant — “must reasonably be construed as speaking as of the date of the affidavit, for the present tense is used”. It reasoned also that the second fact — -the detection of a strong odor of mash — if read in a commonsense way, is elliptically tied both to the present tense in the preceding statement and to the affiant’s allegation in the body of the affidavit that he has reason to believe that the described property “is now being concealed” on the premises.
Additionally, three other arguments can be made. First, we observe that the officer, having called at a police barracks between 3 and 3:30 a. m., on March 24, 1962, with the warrant, must have presented his affidavit to the Commissioner between midnight and 2 or 3 a. m. We could reason that no responsible law officer would disturb a magistrate at such an hour on the basis of stale information and observation. Secondly, we could make the distinction between the operation of distilling apparatus plus the strong odor of mash as implying much more of a continuing situation than, for example, would exist in connection with an allegation as to the harboring of stolen property, which might reasonably be in transit and in the process of dispersion. See United States v. Williams, 6 Cir., 1965, 351 F.2d 475. Finally, we could make a distinction between affidavits where the affiant himself has made observations and is available to the magistrate to fill in gaps and where the sole observations are made by another than the affiant. See United States v. Sawyer, E.D.Pa., 1963, 213 F.Supp. 38.
But having made as strong a case for the affidavit as we think can be made, we conclude that it is not enough. The present tense is suspended in the air; has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a day, a week, or months before the date of the affidavit. To make a double inference, that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their “natural and detached” function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them.
The other arguments are equally unpersuasive. In the instant case we may well say that the early morning application for the warrant reflected a sense of immediacy. But to state the proposition that an after-hours application to. a magistrate can cure the lack of averment as to time of observation is to deflate it as a reasonable ground for believing probable cause exists. For example, were we to rely on this reasoning, a magistrate could, in the future, base his belief that a crime was being committed on the fact that the officer-affiant came to him in a state of breathless excitement, even though at high noon.
No more persuasive is the argument that the operation of a still implies continuity, and therefore the likelihood of accuracy of information gathered sometime in the past. If this argument were accepted, there would be relaxed time requirements for all crimes except the most episodic — and these are the very ones to which the law accords an exception to the general requirement of a warrant. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
Such attempts at justification with all the uncertainty involved in reasoning from facts outside the warrant, underscore the wisdom of treating the averments of an affidavit like pleadings in a cause. United States v. Casino, supra. It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed.
If the magistrate must observe certain minimum requirements, so must the officer-affiant. He must set forth the basis for the magistrate’s inferences with enough precision so that, if the affidavit is subjected to an attack for lack of probable cause at a subsequent hearing, the trial judge will be ruling on the reasonableness of inferences based on the same underlying circumstances as confronted the commissioner. But suppose a commissioner, on the basis of an affidavit like that in this case, were to infer that both affiant’s information and observation were recent, while at a hearing on a motion to suppress, affiant states that both information and observation were several months old. There would, in fact, have been no basis for issuing the warrant, and yet the affidavit would have been accurate and the affiant would be in no danger of prosecution for its falsity. To create the possibility of ancient information parading beneath the protective mask of a bland, “present tense” warrant would not, in our opinion, be in the interests of proper law enforcement or justice.
Nor would the cause of improved judicial administration be served by increased reliance on motions to suppress evidence in order to expose the extent to which an affidavit, while true, might still be misleading. Such deferral of this issue would shift the responsibility of passing on the officer’s judgment from the commissioner to the trial court. To the extent this were done, the function of the warrant-issuing magistrate would wither away to the point of being a vestigial formality.
As to the distinction between the standards of judging an affidavit based solely on an informant’s observations and one where the affiant himself made observations and is therefore available for examination by the magistrate, we do not feel it should be carried so far as to dispense with the requirement of reasonably specific time averments.- With a small amendment, both magistrate and officer could have remedied the defect in this case. We see no policy served which would relieve them of this minimal burden.
These difficulties lead us to inquire whether the common-sense policy articulated in Ventresca should be construed to relax the long standing, judicially recognized requirement for averments of time of observation of the underlying facts in an affidavit for a search warrant. In that case, this question was farthest from the minds of the Court since there were no fewer than eleven specific allegations of time. The Court was rather dealing with our concern over the problem of distinguishing among af-fiant’s observation, hearsay, and hearsay on hearsay. We doubt that it would wish to weight the scales in favor of the warrant to the extent of abandoning the requirement of some reasonably specific allegation to give a magistrate a basis for deciding whether a crime was still being committed. In no cases relying on Ventresca which have come to our attention has such a major defect been waived.
While we might give lip service to principle and yet uphold the warrant as a “doubtful or marginal” case, we do not think this would be a service either to the conduct of law enforcement or the protection of citizens’ rights. Such a disposition of this case would, we feel, needlessly enlarge the area of uncertainty and litigation.
We conclude that a combination of undated, conclusory information from an anonymous source and an undated general allegation of personal observation by the affiant, with no other reasonably specific clues to the time of their happening, is inadequate. We do not think this is being hypertechnical, legalistic, or insistent on a requirement of “elaborate specificity once executed by common law pleadings”. Police officers have long been accustomed to the importance of time; to their credit, the overwhelming majority of affidavits have honored the requirement.
We are aware of the vast amount of painstaking care invested by the district court in two trials to date. Nevertheless, having carefully considered both precedent and policy, we are constrained to hold the affidavit and therefore the warrant, search, resulting evidence, and judgment invalid.
There is one other point raised by appellants which, in the event of another trial, ought to be resolved. Their contention is that the district court erred in admitting a transcript of testimony in a prior trial. This was testimony by one Broderick, a claims adjuster for the New England Telephone and Telegraph Company, that three long distance calls had been made on December 20, 1961 from a gas station in Massachusetts to Ash Swamp Road farm. These calls were relevant to the proof of appellant Rosencranz’s participation in the alleged conspiracy. Subsequent to the prior trial, witness Broderick, admittedly not a permanent custodian of records of calls, had destroyed the records from which he had testified. At the trial below, the transcript of his prior testimony was read.
The appellants claim that they have been deprived of the right of cross-examination. But the witness had given the testimony in question at a former trial where parties and issues were the same and where full opportunity for cross-examination was afforded. While we do not condone the action of the witness in destroying records for which he was not responsible, no improper motive has been suggested and the prior testimony was of an objective reportorial nature not ordinarily suspect. We have no hesitation in saying the testimony was admissible. 5 Wigmore, Evidence, §§ 1370, 1371 (3d ed. 1940).
Judgment will be entered in each case vacating the judgment of the District Court, setting aside the verdict, and remanding the case for further proceedings not inconsistent with this opinion.
. The affidavit reads as follows:
AFFIDAVIT FOR SEARCH WARRANT
Before Herbert H. Sawyer, 443 Congress Street, Portland, Maine The undersigned being duly sworn deposes and says:
That lie has reason to believe that on the premises known as the one and one-half story wooden frame dwelling house and barn, formerly owned by one Bovine, located on the north side of Ash Swamp Road, three-tenths of a mile easterly from the intersection of Lincoln Road and Ash Swamp Road, Scarborough, Maine, in the Southern District of Maine, there is now being concealed certain property, namely mash fit for distillation, apparatus for the purpose of distillation and nontax paid alcohol which are held in violation of Title 26, USC Sec. 5601, (a), (1), (6), (7), (8), (12);
And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
1. Information given anonymously to the Affiant that the aforementioned materials are being held on said premises,
2. The detection of a strong odor of mash outside the premises by the Affiant.
(s) Richard K. Weller
Criminal Investigator,
U. S. Treasury Department
Sworn to before me, and subscribed in my presence, March 24,1962
(s) Herbert H. Sawyer
. The evidence shows that while DiPietro had purchased the property seven months previously, he had never recorded his title, forgot what he did with his deed, never made monthly mortgage payments, and never took out insurance, arranged for utility services, or paid taxes. While he had driven by the property, he had never set foot on it, moved personal property to it, rented it, made any effort to rent it, leased it, given permission to anyone to use it, or knew that anyone was occupying it. He declared himself not interested in the house or buildings, which were “in poor shape” and were of “no value” to him. His avowed purpose in purchasing the property (under the assumed name of John Fino) was to raise horses and Christmas trees, neither of which objective was ever pursued. For almost six months prior to the search, since September, he was attempting to find a purchaser, although he did not talk with a broker, or erect a “for sale” sign or advertise the property. He testified that what had changed his mind about the use to him of the property was that “I had attempted to get into the horse business and maybe cultivate some Christmas trees on the property, and I had the few dollars and within a few weeks I had lost it all * * *.”
. The basic principle that there be enough basis for the magistrate to conclude that probable cause exists at the time he issues his warrant has been stated in Sgro v. United States, 1932, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260. In Poldo v. United States, 9 Cir., 1932, 55 F.2d 866, the court, after commenting that the affidavit lacked a date of observation, said, 55 F.2d at 868, “Time of the affidavit’s observations, which are set forth as constituting probable cause that a crime has been committed, is of the essence of the affidavit.” In Kohler v. United States, 9 Cir., 1925, 9 F.2d 23, the court referred to the failure to fill in the spaces for the day and month of alleged possession and sale of liquor as one of the “glaring” defects in the affidavit. In Staker v. United States, 6 Cir., 1925, 5 F.2d 312, an affidavit was silent as to time. The court said, 5 F.2d at 314, “So far as the affidavit shows, the officer might have smelled the fumes months before the affidavit was made.” In Conti v. Morgenthau, S.D.N.Y., 1964, 232 F.Supp. 1004, the court held invalid an affidavit alleging the placing of wagers on certain dates at an apartment and two undated visits of defendant to the apartment. It pointed out the lack of connection of the visits and the wagers, the failure to allege dates “or indeed that the visits were recent”. In United States v. Bosch, E.D.Mich., 1962, 209 F.Supp. 15, an affidavit silent as to when surveillance was made, was held invalid. While not the only reason for its decision, the court indicated that tlie absence of time allegation would have been a sufficient basis. In Williams v. Commonwealth, Ky., 1962, 355 S.W.2d 302, where the affidavit alleged that defendant “has in his possession at this time beer and whiskey * * * for the purpose of sale”, the court held that it was defective for not disclosing when the underlying observation was made. In Odom v. State, 1932, 121 Tex.Cr.R. 209, 50 S.W.2d 1103, where the affidavit alleged that certain “equipment is being, used”, the court held it defective for not revealing that the conduct occurred within a reasonable time. In People v. Musk, 1925, 231 Mich. 187, 203 N.W. 865, an affidavit that affiant “has seen” certain things was held invalid for lack of a time averment.
Waggener v. McCandless, 1946, 183 Tenn. 258, 191 S.W.2d 551, 162 A.L.R. 1402, is not in conflict with this line of cases. While a precise date of receiving information was not alleged, the affidavit stated that affiant had “just received” the information, and the court accordingly upheld the affidavit.
Opposing this array of authority, we have found only two cases upholding an affidavit where no indication of time of receiving information or observation appeared on its face. In Hanson v. State, 1933, 55 Ok.Crim. 138, 26 P.2d 436, the court held it sufficient that the undated observations were made by the affiant and that the allegation of commission of the offense was stated in the present tense. In People v. Warner, 1923, 221 Mich. 657, 192 N.W. 566, an affidavit saying that the affiant “has seen” and “has smelt liquor”, with no allegation as to time, was held sufficient. There seems to have been no issue raised as to the lack of averment of time.
Corroborating the traditional interest of the courts in being able to fix the time' of observation of the underlying facts asserted in affidavits are the many cases where the validity of the warrant was determined by the proximity or remoteness of the events observed. See Schoeneman v. United States, 1963, 115 U.S. App.D.C. 110, 317 F.2d 173 (107 days— invalid); Irby v. United States, supra, (8 days—valid); Dandrea v. United States, 8 Cir., 1925, 7 F.2d 861 (42 days — invalid); United States v. Sawyer, D.C. 1963, 213 F.Supp. 38 (107 days—invalid); United States v. Long, D.D.C., 1959, 169 F.Supp. 730 (11 days—valid); United States v. Allen, E.D.Ky., 1957, 147 F.Supp. 955 (16 days—valid); United States v. Nichols, W.D.Ark., 1950, 89 F.Supp. 953 (21 days—invalid).
. In Gasino, 286 F. at 978, Learned Hand, J., wrote, “While * * * he [the commissioner] must decide after hearing whether on all the facts there were reasonable grounds for the warrant, that does not dispense with the necessity for allegations in the affidavits themselves, which, if true, show a self-subsisting ground for the issuance of the warrant. It is not enough that on the hearing other grounds may appear, even though not upon evidence extracted hy the search itself.”
. We are also mindful of the uncertain status of such hearings as a forum for exposing any falsity in the underlying circumstances. See Rugendorf v. United States, 1964, 376 Ü.S. 528, 531-532, 84 S.Ct. 825, 828, 11 L.Ed.2d 887, when the Court in dealing with a claim of falsity-in an affidavit said:
“Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish ‘probable cause’ * *
Cf. United States v. Bowling, 6 Cir., 1965, 351 F.2d 236, petition for cert. filed Dec. 20, 1965.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
CONNECTICUT et al. v. TEAL et al.
No. 80-2147.
Argued March 29, 1982
Decided June 21, 1982
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist and O’Connor, JJ., joined, post, p. 456.
Bernard F. McGovern, Jr., Assistant Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Carl R. Ajello, Attorney General, Peter W. Gillies, Deputy Attorney General, and Robert E. Walsh, Sidney D. Giber, and Thomas P. Clifford III, Assistant Attorneys General.
Thomas W. Bucci argued the cause for respondents. With him on the brief was Sidney L. Dworkin.
Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Harriets. Shapiro, Brian K. Landsberg, David L. Rose, and Joan A. Magagna for the United States; by Robert E. Williams and Douglas S. McDowell for the Equal Employment Advisory Council et al.; and by Leonard S. Janofsky and Paul Grossman for the National League of Cities et al.
Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Robert M. Weinberg, Michael H. Gottesman, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Richard C. Dinkelspiel, William L. Robinson, Norman J. Chachkin, and Beatrice Rosenberg for the Lawyers’ Committee for Civil Rights Under Law.
Justice Brennan
delivered the opinion of the Court.
We consider here whether an employer sued for violation of Title VII of the Civil Rights Act of 1964 may assert a “bottom-line” theory of defense. Under that theory, as asserted in this case, an employer’s acts of racial discrimination in promotions — effected by an examination having disparate impact — would not render the employer liable for the racial discrimination suffered by employees barred from promotion if the “bottom-line” result of the promotional process was an appropriate racial balance. We hold that the “bottom line” does not preclude respondent employees from establishing a prima facie case, nor does it provide petitioner employer with a defense to such a case.
I
Four of the respondents, Winnie Teal, Rose Walker, Edith Latney, and Grace Clark, are black employees of the Department of Income Maintenance of the State of Connecticut. Each was promoted provisionally to the position of Welfare Eligibility Supervisor and served in that capacity for almost two years. To attain permanent status as supervisors, however, respondents had to participate in a selection process that required, as the first step, a passing score on a written examination. This written test was administered on December 2,1978, to 329 candidates. Of these candidates, 48 identified themselves as black and 259 identified themselves as white. The results of the examination were announced in March 1979. With the passing score set at 65, 54.17 percent of the identified black candidates passed. This was approximately 68 percent of the passing rate for the identified white candidates. The four respondents were among the blacks who failed the examination, and they were thus excluded from further consideration for permanent supervisory positions. In April 1979, respondents instituted this action in the United States District Court for the District of Connecticut against petitioners, the State of Connecticut, two state agencies, and two state officials. Respondents alleged, inter alia, that petitioners violated Title VII by imposing, as an absolute condition for consideration for promotion, that applicants pass a written test that excluded blacks in disproportionate numbers and that was not job related.
More than a year after this action was instituted, and approximately one month before trial, petitioners made promotions from the eligibility list generated by the written examination. In choosing persons from that list, petitioners considered past work performance, recommendations of the candidates’ supervisors and, to a lesser extent, seniority. Petitioners then applied what the Court of Appeals characterized as an affirmative-action program in order to ensure a significant number of minority supervisors. Forty-six persons were promoted to permanent supervisory positions, 11 of whom were black and 35 of whom were white. The overall result of the selection process was that, of the 48 identified black candidates who participated in the selection process, 22.9 percent were promoted and of the 259 identified white candidates, 13.5 percent were promoted. It is this “bottom-line” result, more favorable to blacks than to whites, that petitioners urge should be adjudged to be a complete defense to respondents’ suit.
After trial, the District Court entered judgment for petitioners. App. to Pet. for Cert. 18a. The court treated respondents’ claim as one of disparate impact under Griggs v. Duke Power Co., 401 U. S. 424 (1971), Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), and Dothard v. Rawlinson, 433 U. S. 321 (1977). However, the court found that, although the comparative passing rates for the examination indicated a prima facie case of adverse impact upon minorities, the result of the entire hiring process reflected no such adverse impact. Holding that these “bottom-line” percentages precluded the finding of a Title VII violation, the court held that the employer was not required to demonstrate that the promotional examination was job related. App. to Pet. for Cert. 22a-24a, 26a. The United States Court of Appeals for the Second Circuit reversed, holding that the District Court erred in ruling that the results of the written examination alone were insufficient to support a prima facie case of disparate impact in violation of Title VII. 645 F. 2d 133 (1981). The Court of Appeals stated that where “an identifiable pass-fail barrier denies an employment opportunity to a disproportionately large number of minorities and prevents them from proceeding to the next step in the selection process,” that barrier must be shown to be job related. Id., at 138. We granted certiorari, 454 U. S. 813 (1981), and now affirm.
a
>
We must first decide whether an examination that bars a disparate number of black employees from consideration for promotion, and that has not been shown to be job related, presents a claim cognizable under Title VII. Section 703 (a)(2) of Title VII provides in pertinent part:
“It shall be an unlawful employment practice for an employer—
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, as amended, 42 U. S. C. § 2000e-2(a)(2).
Respondents base their claim on our construction of this provision in Griggs v. Duke Power Co., supra. Prior to the enactment of Title VII, the Duke Power Co. restricted its black employees to the labor department. Beginning in 1965, the company required all employees who desired a transfer out of the labor department to have either a high school diploma or to achieve a passing grade on two professionally prepared aptitude tests. New employees seeking positions in any department other than labor had to possess both a high school diploma and a passing grade on these two examinations. Although these requirements applied equally to white and black employees and applicants, they barred employment opportunities to a disproportionate number of blacks. While there was no showing that the employer had a racial purpose or invidious intent in adopting these requirements, this Court held that they were invalid because they had a disparate impact and were not shown to be related to job performance:
“[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” 401 U. S., at 431.
Griggs and its progeny have established a three-part analysis of disparate-impact claims. To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a finding of discrimination. Griggs, supra, at 432. Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination. See Albemarle Paper Co., supra, at 425; Dothard, supra, at 329.
Griggs recognized that in enacting Title VII, Congress required “the removal of artificial, arbitrary, and unnecessary barriers to employment” and professional development that had historically been encountered by women and blacks as well as other minorities. 401 U. S., at 431. See also Dothard v. Rawlinson, supra. McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), explained that
“Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives.” Id., at 806.
Petitioners’ examination, which barred promotion and had a discriminatory impact on black employees, clearly falls within the literal language of § 703(a)(2), as interpreted by Griggs. The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities. A disparate-impact claim reflects the language of § 703(a)(2) and Congress’ basic objectives in enacting that statute: “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” 401 U. S., at 429-430 (emphasis added). When an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity “ because of. . . race, color, religion, sex, or national origin.” In other words, § 703(a)(2) prohibits discriminatory “artificial, arbitrary, and unnecessary barriers to employment,” 401 U. S., at 431, that “limit... or classify. . . applicants for employment... in any way which would deprive or tend to deprive any individual of employment opportunities.” (Emphasis added.)
Relying on § 703(a)(2), Griggs explicitly focused on employment “practices, procedures, or tests,” 401 U. S., at 430, that deny equal employment “opportunity,’’.¿d, at 431. We concluded that Title VII prohibits “procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups.” Id., at 432. We found that Congress’ primary purpose was the prophylactic one of achieving equality of employment “opportunities” and removing “barriers” to such equality. Id., at 429-430. See Albemarle Paper Co. v. Moody, 422 U. S., at 417. The examination given to respondents in this case surely constituted such a practice and created such a barrier.
Our conclusion that § 703(a)(2) encompasses respondents’ claim is reinforced by the terms of Congress’ 1972 extension of the protections of Title VII to state and municipal employees. See n. 8, supra. Although Congress did not explicitly consider the viability of the defense offered by the state employer in this case, the 1972 amendments to Title VII do reflect Congress’ intent to provide state and municipal employees with the protection that Title VII, as interpreted by Griggs, had provided to employees in the private sector: equality of opportunity and the elimination of discriminatory barriers to professional development. The Committee Reports and the floor debates stressed the need for equality of opportunity for minority applicants seeking to obtain governmental positions. E. g., S. Rep. No. 92-415, p. 10 (1971); 118 Cong. Rec. 1815 (1972) (remarks of Sen. Williams). Congress voiced its concern about the widespread use by state and local governmental agencies of “invalid selection techniques” that had a discriminatory impact. S. Rep. No. 92-415, supra, at 10; H. R. Rep. No. 92-238, p. 17 (1971); 117 Cong. Rec. 31961 (1971) (remarks of Rep. Perkins).
The decisions of this Court following Griggs also support respondents’ claim. In considering claims of disparate impact under § 703(a)(2) this Court has consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities. This Court has never read § 703(a)(2) as requiring the focus to be placed instead on the overall number of minority or female applicants actually hired or promoted. Thus Dothard v. Rawlinson, 433 U. S. 321 (1977), found that minimum statutory height and weight requirements for correctional counselors were the sort of arbitrary barrier to equal employment opportunity for women forbidden by Title VII. Although we noted in passing that women constituted 36.89 percent of the labor force and only 12.9 percent of correctional counselor positions, our focus was not on this “bottom line.” We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more women than men as ineligible for employment. Id., at 329-330, and n. 12. Similarly, in Albemarle Paper Co. v. Moody, supra, the action was remanded to allow the employer to attempt to show that the tests that he had given to his employees for promotion were job related. We did not suggest that by promoting a sufficient number of the black employees who passed the examination, the employer could avoid this burden. See 422 U. S., at 436. See also New York Transit Authority v. Beazer, 440 U. S. 568, 584 (1979) (“A prima facie violation of the Act may be established by statistical evidence showing that an employment practice has the effect of denying members of one race equal access to employment opportunities”) (emphasis added).
In short, the District Court’s dismissal of respondents’ claim cannot be supported on the basis that respondents failed to establish a prima facie case of employment discrimination under the terms of § 703(a)(2). The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Title VII strives to achieve equality of opportunity by rooting out “artificial, arbitrary, and unnecessary” employer-created barriers to professional development that have a discriminatory impact upon individuals. Therefore, respondents’ rights under § 703(a)(2) have been violated, unless petitioners can demonstrate that the examination given was not an artificial, arbitrary, or unnecessary barrier, because it measured skills related to effective performance in the role of Welfare Eligibility Supervisor.
B
The United States, in its brief as amicus curiae, apparently recognizes that respondents’ claim in this case falls within the affirmative commands of Title VII. But it seeks to support the District Court’s judgment in this case by relying on the defenses provided to the employer in § 703(h). Section 703(h) provides in pertinent part:
“Notwithstanding any other provision of this subchap-ter, it shall not be an unlawful employment practice for an employer ... to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 78 Stat. 257, as amended, 42 U. S. C. § 2000e-2(h).
The Government argues that the test administered by the petitioners was not “used to discriminate” because it did not actually deprive disproportionate numbers of blacks of promotions. But the Government’s reliance on § 708(h) as offering the employer some special haven for discriminatory tests is misplaced. We considered the relevance of this provision in Griggs. After examining the legislative history of § 703(h), we concluded that Congress, in adding § 703(h), intended only to make clear that tests that were job related would be permissible despite their disparate impact. 401 U. S., at 433-436. As the Court recently confirmed, §703 (h), which was introduced as an amendment to Title VII on the Senate floor, “did not alter the meaning of Title VII, but ‘merely clarifie[d] its present intent and effect.’” American Tobacco Co. v. Patterson, 456 U. S. 63, 73, n. 11 (1982), quoting 110 Cong. Rec. 12723 (1964) (remarks of Sen. Humphrey). A non-job-related test that has a disparate racial impact, and is used to “limit” or “classify” employees, is “used to discriminate” within the meaning of Title VII, whether or not it was “designed or intended” to have this effect and despite an employer’s efforts to compensate for its discriminatory effect. See Griggs, 401 U. S., at 433.
In sum, respondents’ claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2), despite their employer’s nondiscriminatory “bottom line,” and that “bottom line” is no defense to this prima facie case under § 703(h).
Ill
Having determined that respondents’ claim comes within the terms of Title VII, we must address the suggestion of petitioners and some amici curiae that we recognize an exception, either in the nature of an additional burden on plaintiffs seeking to establish a prima facie case or in the nature of an affirmative defense, for cases in which an employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory “bottom line.” We reject this suggestion, which is in essence nothing more than a request that we redefine the protections guaranteed by Title VII.
Section 703(a)(2) prohibits practices that would deprive or tend to deprive “any individual of employment opportunities.” The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole. Indeed, the entire statute and its legislative history are replete with references to protection for the individual employee. See, e. g., §§ 703(a)(1), (b), (c), 704(a), 78 Stat. 255-257, as amended, 42 U. S. C. §§2000e-2(a)(1), (b), (c), 2000e-3(a); 110 Cong. Rec. 7213 (1964) (interpretive memorandum of Sens. Clark and Case) (“discrimination is prohibited as to any individual”); id., at 8921 (remarks of Sen. Williams) (“Every man must be judged according to his ability. In that respect, all men are to have an equal opportunity to be considered for a particular job”).
In suggesting that the “bottom line” may be a defense to a claim of discrimination against an individual employee, petitioners and amici appear to confuse unlawful discrimination with discriminatory intent. The Court has stated that a nondiscriminatory “bottom line” and an employer’s good-faith efforts to achieve a nondiscriminatory work force, might in some cases assist an employer in rebutting the inference that particular action had been intentionally discriminatory: “Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided.” Furnco Construction Corp. v. Waters, 438 U. S. 567, 580 (1978). See also Teamsters v. United States, 431 U. S. 324, 340, n. 20 (1977). But resolution of the factual question , of intent is not what is at issue in this case. Rather, petitioners seek simply to justify discrimination against respondents on the basis of their favorable treatment of other members of respondents’ racial group. Under Title VII, “[a] racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.” Furnco Construction Corp. v. Waters, 438 U. S., at 579.
“It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant’s race are already proportionately represented in the work force. See Griggs v. Duke Power Co., 401 U. S., at 430; McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 279 (1976).” Ibid, (emphasis in original).
It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group. We recognized in Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 (1978), that fairness to the class of women employees as a whole could not justify unfairness to the individual female employee because the “statute’s focus on the individual is unambiguous.” Id., at 708. Similarly, in Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), we recognized that a rule barring employment of all married women with preschool children, if not a bona fide occupational qualification under § 703(e), violated Title VII, even though female applicants without preschool children were hired in sufficient numbers that they constituted 75 to 80 percent of the persons employed in the position plaintiff sought.
Petitioners point out that Fumco, Manhart, and Phillips involved facially discriminatory policies, while the claim in the instant case is one of discrimination from a facially neutral policy. The fact remains, however, that irrespective of the form taken by the discriminatory practice, an employer’s treatment of other members of the plaintiffs’ group can be “of little comfort to the victims of . . . discrimination.” Teamsters v. United States, supra, at 342. Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. Every individual employee is protected against both discriminatory treatment and “practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U. S., at 431. Requirements and tests that have a discriminatory impact are merely some of the more subtle, but also the more pervasive, of the “practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411 U. S., at 800.
IV
In sum, petitioners’ nondiscriminatory “bottom line” is no answer, under the terms of Title VII, to respondents’ prima facie claim of employment discrimination. Accordingly, the judgment of the Court of Appeals for the Second Circuit is affirmed, and this case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1976 ed. and Supp. IV).
The black respondents were joined as plaintiffs by four white employees on a pendent claim that the written test violated provisions of state law that require promotional exams to be job related. That claim is not before us. See 645 F. 2d 133, 135, n. 3 (CA2 1981)..
The mean score on the examination was 70.4 percent. However, because the black candidates had a mean score 6.7 percentage points lower than the white candidates, the passing score was set at 65, apparently in an attempt to lessen the disparate impact of the examination. See id., at 135, and n. 4.
The following table shows the passing rates of various candidate groups:
Candidate Group Number No. Receiving Passing Score Passing Rate (%)
Black 48 26 54.17
Hispanic 4 3 75.00
Indian 3 2 66.67
White 259 206 79.54
Unidentified 15 9 60.00
Total 329 246 74 77
Petitioners do not contest the District Court’s implicit finding that the examination itself resulted in disparate impact under the “eighty percent rule” of the Uniform Guidelines on Employee Selection Procedures adopted by the Equal Employment Opportunity Commission. See App. to Pet. for Cert. 18a, 23a, and n. 2. Those guidelines provide that a selection rate that “is less than [80 percent] of the rate for the group with the highest rate will generally be regarded ... as evidence of adverse impact.” 29 CFR § 1607.4D (1981).
Petitioners contest this characterization of their selection procedure. We have no need, however, to resolve this dispute in the context of the present controversy.
The actual promotion rate of blacks was thus close to 170 percent that of the actual promotion rate of whites.
Petitioners apparently argue both that the nondiscriminatory “bottom line” precluded respondents from establishing a prima facie case and, in the alternative, that it provided a defense.
The legislative history of the 1972 amendments to Title VII, 86 Stat. 103-113, is relevant to this case because those amendments extended the protection of the Act to respondents here by deleting exemptions for state and municipal employers. See 86 Stat. 103. That history demonstrates that Congress recognized and endorsed the disparate-impact analysis employed by the Court in Griggs. Both the House and Senate Reports cited Griggs with approval, the Senate Report noting:
“Employment discrimination as viewed today is a . . . complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of ‘systems’ and ‘effects’ rather than simply intentional wrongs.” S. Rep. No. 92-415, p. 5 (1971).
See also H. R. Rep. No. 92-238, p. 8 (1971). In addition, the section-by-section analyses of the 1972 amendments submitted to both Houses explicitly stated that in any area not addressed by the amendments, present case law — which as Congress had already recognized included our then recent decision in Griggs — was intended to continue to govern. 118 Cong. Rec. 7166, 7564 (1972).
In contrast, the language of § 703(a)(1), 42 U. S. C. § 2000e-2(a)(l), if it were the only protection given to employees and applicants under Title VII, might support petitioners’ exclusive focus on the overall result. That subsection makes it an unlawful employment practice
“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The Committee Reports in both Houses, and Senator Williams, principal sponsor of the Senate bill that was ultimately enacted in large part, relied upon a report of the United States Commission on Civil Rights, which Senator Williams placed in the Congressional Record. See H. R. Rep. No. 92-238, p. 17 (1971); S. Rep. No. 92-415, p. 10 (1971); 118 Cong. Rec. 1815-1819 (1972). The Commission concluded that serious “(bjarriers to equal opportunity” existed for state and local government employees. Two of the- three barriers cited were “recruitment and selection devices which are arbitrary, unrelated to job performance, and result in unequal treatment of minorities," and promotions made on the basis of “criteria unrelated to job performance and on discriminatory supervisory ratings.” U. S. Commission on Civil Rights, For All the People... By All the People — A Report on Equal Opportunity in State and Local Government Employment 119 (1969), reprinted in 118 Cong. Rec. 1817 (1972).
The Government’s brief is submitted by the Department of Justice, which shares responsibility for federal enforcement of Title VII with the Equal Employment Opportunity Commission (EEOC). The EEOC declined to join this brief. See Brief for United States as Amicus Curiae 1, and n.
Petitioners suggest that we should defer to the EEOC Guidelines in this regard. But there is nothing in the Guidelines to which we might defer that would aid petitioners in this case. The most support petitioners could conceivably muster from the Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1981) (now issued jointly by the EEOC, the Office of Personnel Management, the Department of Labor, and the Department of Justice, see 29 CFR § 1607.1A (1981)), is neutrality on the question whether a discriminatory barrier that does not result in a discriminatory overall result constitutes a violation of Title VII. Section 1607.4C of the Guidelines, relied upon by petitioners, states that as a matter of “administrative and prosecutorial discretion, in usual circumstances,” the agencies will not take enforcement action based upon the disparate impact of any component of a selection process if the total selection process results in no adverse impact. (Emphasis added.) The agencies made clear that the “guidelines do not address the underlying question of law,” and that an individual “who is denied the job because of a particular component in a procedure which otherwise meets the ‘bottom line’ standard .. . retains the right to proceed through the appropriate agencies, and into Federal court.” 43 Fed. Reg. 38291 (1978). See 29 CFR § 1607.161 (1981). In addition, in a publication entitled Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, the agencies stated:
“Since the [bottom-line] concept is not a rule of law, it does not affect the discharge by the EEOC of its statutory responsibilities to investigate charges of discrimination, render an administrative finding on its investigation, and engage in voluntary conciliation efforts. Similarly, with respect to the other issuing agencies, the bottom line concept applies not to the processing of individual charges, but to the initiation of enforcement action.” 44 Fed. Reg. 12000 (1979).
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_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES v. MAHOWALD et al.
No. 14927.
United States Court of Appeals, Eighth Circuit.
Jan. 21, 1954.
Elizabeth Dudley, Attorney, Department of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., P. W. Lanier, U. S. Atty., Fargo, N. D., and Roger P. Marquis, Attorney, Department of Justice, Washington, D. C., on the brief), for appellant.
Ilvedson, Pringle & Herigstad, Halvor L. Halvorson, Jr., C. A. Waldron, Bosard & McCutcheon, Minot, N. D., and C. L. Foster, Bismark, N. D., for appellees.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
SANBORN, Circuit Judge.
The United States, in connection with the acquisition of land for use in the construction, operation and maintenance of the Garrison Dam and Reservoir Project on the Missouri River, commenced three condemnation proceedings involving fourteen tracts of North Dakota farm lands belonging to various owners. The proceedings were not commenced at the same time. The petition in one of them was filed October 2, 1950, in another January 5, 1951, and in the third January 10,1952.
The three proceedings were consolidated for trial and were tried to a jury commencing October 16, 1952. The sole purpose of the trial was to ascertain what the Government would have to pay for the lands in suit. At the time of trial the Government had not taken possession of the lands nor had it acquired title by filing declarations of taking under the Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C.A. § 258a. The possession and title of the lands were in the owners.
It is conceded that before the commencement of the trial the District Court in chambers inquired of the parties “as to the ‘time of taking’ of the tracts of land involved in these cases; that it was then agreed between the parties in the presence of the Court that the ‘time of taking’ of said tracts of land was the ‘time of trial’ and that testimony as to market values on all of said tracts would be based and set as of the time of trial.” It is also conceded that the court instructed the jury that “The only question for consideration is the fair and reasonable market value for cash as of the time of taking, which is now, and not as of any other time”; and further conceded that no objections or exceptions to the court’s instructions were taken.
On October 30, 1952, the jury returned separate verdicts determining the market value of each of the various tracts as of the time of trial. The aggregate amount of the jury awards was $169,085.
The Government on November 3, 1952, filed a motion for a remittitur or, in the alternative, for a new trial. The motion was denied by the court on March 11, 1953. Declarations of taking were filed and estimated compensation paid into court by the Government in one of the cases on March 30, 1953, in another on April 6, 1953, and in the third on April 13, 1953.
The court on June 12, 1953, filed findings of fact and conclusions of law and entered judgment úpon the jury verdicts. The court determined that the title to the lands in suit vested in the United States on the dates of the filing of the declarations of taking, that the jury awards represented just compensation for the tracts of land in suit, and that the owners were entitled to the full amounts of such awards “with interest thereon at the rate of six per cent per annum from October 16, 1952, the date of the taking, on the full amounts of said verdicts to the dates of the filing of the Declarations of Taking * * * and the deposit in the Register of the Court of the amount of the estimated compensation for each said tract, respectively, * * *»
The Government objected to the allowance of interest on the jury awards from October 16, 1952, to the dates of the filing of the declarations of taking. The court on July 2, 1952, ordered that the deposits by the Government of the full amount of the judgment, including such interest, should be without prejudice to the rights of the Government to appeal from the judgment. This appeal followed.
What constitutes just compensation in a federal condemnation proceeding is a question of federal law. State of Nebraska v. United States, 8 Cir., 164 F.2d 866, 867. The forms and methods of procedure prescribed for the conduct of such proceedings do not and cannot affect “questions of substantive right, — such as the measure of compensation, — grounded upon the Constitution of the United States.” United States v. Miller, 317 U.S. 369, 380-381, 63 S.Ct. 276, 283, 87 L.Ed. 336.
In United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566, the Supreme Court held that in a condemnation proceeding the owners were entitled, as a part of their just compensation, to interest on the awards from the time when the Government took actual possession to the time deposit was made in payment of the awards. The court said, 255 U.S. at page 169, 41 S.Ct. at page 282:
“Having taken the lands of the defendants in error, it was the duty of the government to make just compensation as of the time when the owners were deprived of their property.”
In the case of Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed. 664, the court said:
“* * * Where the United States condemns and takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the property at the time of the taking; he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added.”
The Supreme Court used the following language in Danforth v. United States, 308 U.S. 271, at pages 284-285, 60 S.Ct. 231, 236, 84 L.Ed. 240:
“ * * * Unless a taking has occurred previously in actuality or by a statutory provision, which fixes the time of taking by an event such as the filing of an action, we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the con-demnor. No interest is due upon the award. Until taking, the condemnor may discontinue or abandon his effort. The determination of the award is an offer subject to acceptance by the condemnor and thus gives to the user of the sovereign power of eminent domain an opportunity to determine whether the valuations leave the cost of completion within his resources. Condemnation is a means by which the sovereign may find out what any piece of property will cost. ‘The owner is protected by the rule that title does not pass until compensation has been ascertained and paid * *
A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.”
This Court, in Oliver v. United States, 155 F.2d 73, 75, affirmed — Albrecht v. United States — 329 U.S. 599, 67 S.Ct. 606, 91 L.Ed. 532, speaking of a situation where the Government and the land owner have by contract fixed the value of land for purposes of condemnation, said r
“ * * * Plainly, where after such a contract the United States acquires possession of the land in the contemplated condemnation proceedings and fails to make payment of the agreed value contemporaneously with the taking, interest must be allowed the owner from the date of taking until payment in order that the constitutional requirement of just compensation may be satisfied. Conversely, where the payment of the agreed value and the taking in the condemnation proceedings are contemporaneous, interest is not allowable.”
The case of United States v. Johns, 9 Cir., 146 F.2d 92, presented the same question with which we are confronted, arising out of a similar state of facts, the only difference being that in that case no stipulation such as was entered into at the time of trial of this case was involved. The applicable law was stated in that case concisely and accurately as follows at page 93 of 146 F.2d:
“For the taking of private property, by condemnation or otherwise, appellant is required to pay just compensation. Just compensation is the value of the property taken at the time of the taking. If the taking precedes the payment of compensation, the owner is entitled to such addition to the value at the time of the taking as will produce the full equivalent of such value paid contemporaneously. Interest at a proper rate is a good measure of the amount to be added. Such interest is allowable from the time of the taking, and is not allowable for any period prior to the taking.”
In the instant case the owners of the lands in suit were not deprived of their property until the declarations of taking were filed by the Government and estimated compensation was deposited. The stipulation made at the trial, obviously for the purpose of fixing the time as of which the market value of the lands in suit should be determined by the jury, deprived the owners of nothing and gave the Government no interest in their lands. To give to the making of this stipulation the full effect of actual possession of the lands in suit by the Government is, we think, unwarranted and unrealistic. The jury awards merely fixed the compensation which would have to be paid for the various tracts in suit if and when the Government took physical possession of them or filed declarations of taking.
The District Court in the judgment appealed from erred in providing for interest on the jury awards from the date of trial to the dates of the filing of declarations of taking. That part of the judgment is reversed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_certreason
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L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
BRUNO v. PENNSYLVANIA
No. 205.
Argued December 14, 1970
Decided January 12, 1971
Daniel L. Quinlan, Jr., argued, the cause and filed a brief for petitioner.
Milton O. Moss argued the cause and filed a brief for respondent.
Per Curiam.
' The writ of certiorari is dismissed, as improvidently granted.
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_origin
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
RAINES v. LIGON et al.
Circuit Court of Appeals, Tenth Circuit.
January 15, 1930.
No. 109.
Wellington L. Merwine, of Okmulgee, Okl., for appellant.
Y. R. Biggers, of Wewoka, Okl. (Biggers, Wilson & Aldridge, Pryor & Stokes, and A. M. Fowler, all of Wewoka, Okl., on the brief), for appellees Ligón, Mainard, Gamer, Brixey, and Casey.
0. Dale Wolfe and W. M. Haulsee, both of Wewoka, Okl., for appellee Mathis.
Before LEWIS, PHILLIPS and MeDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a suit in equity brought by Maceo Raines to cancel: (1) A warranty deed running from plaintiff and N. H. Raines, her husband, to J. A. ligón, conveying 120 acres of land in Seminole county, Oklahoma; (2) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein, from Ligón to W. E. Casey, J. D. Gamer, Mabel Gamer, Herman Shepard and J. L. Mainard; and (3) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein from Shepard to J. F. Remy and 0. Brixey.
The complaint alleged that the plaintiff is a resident of Springfield, Tennessee; that she had employed one J. A. Burrows, of lima, Oklahoma, as her agent, to sell such tract of land; that, on March 5,1926, an oil well was being drilled in the vicinity of such land; that such well was then producing some oil and gas and was giving indications that it would eome in as a commercial well; that plaintiff had no knowledge of the oil and gas development in the vicinity of such land; that, on March 5, 1926, the above named grantees, with the knowledge that Burrows was plaintiff’s agent, induced Burrows to go to Springfield and negotiate with plaintiff for the conveyance of such land to them for $10,-5Ó0; that such amount was a grossly inadequate consideration; that such grantees, in order to induce Burrows to violate his trust, agreed to pay him a large sum of money, as commission for his services, and to pay his traveling expenses from his home in Oklahoma to Springfield and return; that, pursuant to such agreement with such grantees, Burrows went to Springfield, advised plaintiff to sell such land for $10,500, induced her to execute and deliver a deed for such land to J. A. ligón and concealed from her the fact of the drilling of such well and of the increased value of such land on account thereof.
The complaint further alleged such conveyances of the oil, gas and other mineral rights in such land and that such grantees took such conveyances with the knowledge that Ligón had procured such deed to the land by fraud and deceit.
The complaint tendered a restoration of the amount paid for such land and prayed for cancellation of such deeds and conveyances.
Ligón filed an answer denying specifically the allegations of fraud and alleged that Burrows, as agent for the plaintiff, approached him on March 5,1926, and offered to sell such land to him; that he agreed to buy the land for $15,000; that Burrows thereupon went to the home of plaintiff and procured the deed; that such deed, with sight draft for $10,500 attached, was forwarded to the Farmers’ National Bank at Wewoka, Oklahoma; that plaintiff appeared in person at the bank, on the day the draft was presented to Ligón, and directed the bank not to deliver the deed until further notice from her; that plaintiff then entered into negotiations with Ligón for the sale of the land; that such negotiations eontinued for about fifteen days; that during such period plaintiff was in the immediate vicinity of the land and knew of the oil development near the land; that, as a result of such negotiations, plaintiff sold the land to Ligón for $15,000; that such sum was the reasonable market value of the land.
Each of the other grantees filed separate answers denying the allegations of fraud and alleging that they were bona fide purchasers for a valuable consideration, without notice of such alleged fraud. '
The evidence showed the following facts: Plaintiff was a Negro woman, twenty-five years of age. She resided with her husband, N. H. Raines, a negro physician, in Springfield, Tennessee. Plaintiff employed Burrows, a negro school teacher, who lived in the immediate vicinity of the land, to act as her agent in the sale of the land and authorized him to sell the land for $10,000 cash or $12,-000 — one-third cash and the balance in deferred payments. Burrows was to receive, as his commission, any amount he could sell the land for in excess of the prices above stated. On March 6, 1926, Burrows approached J. L. Mainard, who was acting for himself, Ligón, M. F. Mainard and E. C. Aldridge, and agreed to sell the land to them for $14,000. A deed, reciting a consideration of $10,500, running to Ligón, as grantee, was prepared and delivered to Burrows. J. L. Mainard instructed Burrows to proceed to plaintiff’s home and consummate the transaction at once before some one telegraphed a fabulous offer to plaintiff. Burrows immediately left Wewoka for Springfield and arrived there on March 8, 1926. He remained there one day discussing the trade with plaintiff and her husband. He represented to them that the oil prospects were not promising; that it might be five or six years before there would be any oil development, and that the oil and gas rights were worth only from $25 to $40 per acre, since there was no oil well being drilled near plaintiff’s land. Burrows left Springfield the evening of March 8, 1926, and returned to Wewoka. On March 11, 1926, plaintiff and her husband executed the deed and forwarded it, with a sight draft for $10,-500 attached, through a Springfield bank to the Farmers’ National Bank, together with instructions to deliver the deed upon payment of the draft. While Burrows was in Springfield, Chas. B. Williams approached J. L. Mainard and said that he had a better offer for the land; that he would wire Burrows to cancel the trade unless Mainard would raise the price $1,000. Mainard assented to this demand and agreed to pay $15,000 for the land. On March 11th, 1926, Burrows and Williams entered into a written contract with Ligón. This contract provided that Williams and Burrows should procure a warranty deed for the land from plaintiff and her husband to Ligón and cause it to be delivered, with sight draft attached for $10,500, to the Farmers’ National Bank; that Ligón should deposit $4,500 in the Security Bank of Wewoka; that the Security Bank should pay to Williams and Burrows the sum of $4,500 upon approval of the title to the land. On March 13, 1926, the plaintiff, having received information from Burrows that some question was being raised about the title to the land, left immediately for Lima, Oklahoma, where her uncle, G. V. Gross, lived, for the purpose of clearing the title to such land. Plaintiff arrived at Lima about March 15, '1926. She agreed with J. L. Mainard, who represented Ligón, M. F. Mainard and Aldridge, to have the Springfield bank reduce the draft from $10,500 to $9,000 and that the sum of $1,500 should be used in remedying the defects in the title to the land. J. L. Mainard and his associates paid the draft, after its reduction to $9,000. After some attempts to clear the title to the land, a further contract was entered into on March 25,1926, by which it was agreed that Burrows and Williams should receive $3,500 instead of $4,500; that plaintiff should refund $2,000 of the consideration received by her; that plaintiff should be released from the warranty contained in her deed; and that Burrows and Williams should be released from any claims against them under the contract of March 11. This contract was carried out. The terms of this contract were proposed by Burrows, Williams and plaintiff and the contract was prepared by their lawyer. Plaintiff then returned to Springfield.
Apparently the alleged defects in the title were substantial, because, at the time of the trial of this cause, three lawsuits were pending against Ligón and the other purchasers, by persons who claimed to own interests in the land.
In the latter part of February and the early part of March, 1926, an oil and gas well was being drilled approximately a mile and a quarter north of the tract of land in question. The producing sand was reached at a depthl of 3,982 feet, about February 28, 1926, and the well on that date produced at the rate of 95 barrels of oil per day. It was drilled further into the sand and, on March 6th, at a depth of 4,009 feet the well produced at the rate of 489 barrels of oil per day. The well was completed on March 12th at a depth of 4,012 feet and produced at the rate of 995 barrels of oil per day. .
During the time that plaintiff was in Oklahoma, she was in the vicinity of the land in question and this oil well, and the defendants in no wise concealed from her the drilling of such well and the increased value of the land on account thereof.
The trial court found the issues in favor of the defendants below and entered its decree denying plaintiff any relief. Plaintiff has appealed.
Fraud must he established by clear, satisfactory and convincing evidence. Lalone v. United States, 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed. 425; In re Locust Bldg. Co. (C. C. A. 2) 299 F. 756, 765, 766; United States v. Bucher (C. C. A. 8) 15 F.(2d) 783, 785; United States v. Hays (C. C. A. 10) 35 F.(2d) 948.
£2] When a court of equity has considered conflicting evidence and has made its findings and decree thereon, such findings and decree are presumptively correct and will not be disturbed, in the absence of a serious mistake in the consideration of the evidence or an obvious error in the application of the law thereto. Fienup v. Kleinman (C. C. A.) 5 F.(2d) 137, 141; State of Iowa v. Carr (C. C. A. 8) 191 F. 257, 263; New York L. I. Co. v. Griffith, Adm’r (C. C. A. 10) 35 F.(2d) 945; Youngblood v. Magnolia Petroleum Co. (C. C. A. 10) 35 F.(2d) 578, 579.
The evidence tended to establish that the agent, Burrows, was unfaithful to his trust, but it failed to establish, with the degree of certainty required, that the purchasers of such laud and mineral rights either participated in or had knowledge of any such fraud.
It does not appear that the trial court made any serious mistake in the consideration, of the evidence or any obvious error in the application of the law to the facts.
The decree is affirmed at plaintiff’s costs.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
MAXIMOV, TRUSTEE, v. UNITED STATES.
No. 240.
Argued March 28, 1963.
Decided April 29, 1963.
David A. Lindsay argued the cause for petitioner. With him on the briefs were D. Nelson Adams, John A. Reed and John A. Cony.
Louis F. Claiborne argued the cause for the United States.' With him on the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer, Meyer Roth-wacks. and Harold C. Wilkenfeld.
Mr. Justice Goldberg
delivered the opinion of the Court..
The question in this case is whether an American trust whose beneficiaries are British' subjects and residents and which retains capital gains income, realized- in this country is exempt from federal income tax on such gains by ■virtue of a provision of the Income Tax Convention between the United States of America and the United Kingdom, April 16, 1945, 60 Stat. 1377, 1384, which exempts capital gains óf a “resident of the United Kingdom.” Certiorari was granted, 371 U. S. 810, to resolve a conflict between the decision of the Court of Appeals for the Second Circuit, 299 F. 2d 565, denying the exemption to the domestic trust, the petitioner in this case, and the decision of the Court of Appeals for-the Ninth Circuit in American Trust Co. v. Smyth, 247 F. 2d 149, granting the exemption to a domestic trust under similar circumstances. ’
I.
The petitioner, represented here by .its successor trustee, Maximov, a citizen and resident of the United States, is a private trust created under Connecticut law in 1947 by an inter vivos deed executed by the grantor, a resident and citizen of the United Kingdom. A lifetime interest in trust income was retained by the grantor, his wife was named contingent successor income beneficiary for her life, and their children were designated as contingent remaindermen. All of the beneficiaries were citizens and residents of the United Kingdom at the times here relevant.
The trust, which is administered in the United States, realized capital gains income upon the sale of certain of its assets during 1954 and 1955;' In accordance with controlling Connecticut law, which the trust instrument expressly makes applicable, these gains were treated as accretions to corpus and were not distributed. Pursuant to . United ■ States income tax provisions applicable to trusts in general, the gains were reported as part of the trust’s income on federal fiduciary tax returns filed by the trustee for the years in question and the appropriate amount of tax paid thereon.
Asserting exemption from United States tax under the Convention, the trustee filed claims for refund which' were disallowed by the Internal Revenue Service. . The trustee then brought this suit in the Federal District Court seek'ing recovery of the tax attributable to the capital gains. Motions for summary judgment were filed both by the petitioner and by the Government. The District Court denied the Government’s motion and entered judgment for the petitioner in the full amount of the tax, holding, upon the • authority of the Smyth case, supra, that the petitioner was- entitled to exemption under the treaty. The Court of Appeals for the Second Circuit reversed and denied the petitioner’s claim of exemption under the Convention. In so doing, the Second Circuit expressly rejected the reasoning adopted, and result reached, by the Ninth Circuit in Smyth.
We conclude that the interpretation of the relevant provisions of the Convention adoptéd by the Second Circuit in this case is the one more consonant with its language, purpose and intent. Accordingly, we affirm' the judgment of the Court of Appeals below, denying the exemption.
II.
Under United States tax laws,-a trust, like the petitioner trust, is treated as a separate taxable entity, apart from its beneficiaries. §§ 641,7701 (a)(1), (14), Int. Rev.' Code of 1954. And, under appropriate provisions of the Internal Revenue Code, trust income neither distributed nor otherwise taxable directly to the beneficiaries is taxable to the trust entity. See §§ 641-668, Int. Rev. Code of 1954. Under these statutory concepts of taxability, the gains here in question are properly includable in, and taxable as, gross income of the petitioner. Whatevér basis there may be, therefore, for relieving the trust from tax must be found in the words or implications of the Convention.
In asserting freedom from liability for United States income tax on its realized and retained capital gains, the petitioner trust relies on Article XIV of the Convention, which provides:
“A resident of the- United Kingdom not engaged in trade or business in the United States shall be exempt from United States tax on gains from the sale or exchange of capital assets.”
The petitioner itself is. a United States'trust established in this country, governed by the laws of one of our States and administered here by an American trustee. It is plainly not a “resident of the United Kingdom,” the class to which exemption under Article XIV is expressly limited. It argues, however, that the purposes and objectives of the treaty require that we disregard its identity as a separate taxable entity and measure the application of the exemptive provision by the economic impact of the tax which would otherwise be imposed. The petitioner thus says that since the real burden of the tax falls upon its beneficiaries, all of whom are residents of the United Kingdom and objects of the treaty protections, the treaty should be read as exempting the trust from the tax asserted by the United States. Mindful that it is a treaty we are construing, and giving the Convention all .proper effect, we cannot, and do not, either read its language or conceive its purpose as encompassing, much less compelling, so significant a deviation from normal word use or domestic tax concepts.
The plain language of the Convention does not afford any support to the petitioner’s argument in favor of . disregarding the trust entity. In fact-, the very words of the treaty impel a contrary .reading. The exemption- provided by Article XIV applies in terms only to a “resident of the United Kingdom” and Article II (l)(g) defines' such a resident as “any person (other than a citizen of the.United States or a United States corporation) who is resident in the United Kingdom for the purposes of United Kingdom tax and hot resident in the United States.for .the purposes of United States tax.” The word “person” is not defined in the treaty and we are referred by Article II (3) of bhe Convention, therefore, to the domestic tax law of the country applying the treaty, in this case the United States; to determine its meaning. Under United States tax law, and apparently under British law as' well, the term “person” includes- a trust. Int. Rev. Code of 1954, § 7701 (a)(1); see Harvard Law School, World Tax Series, Taxation in the United Kingdom, ¶ 5/3.4, p. 127 (1957). Thus, it appears quite clearly that, within the meaning of the Convention, the petitioner trust is a separate “person” and distinct tax entity, apart from its beneficiaries. Since the petitioner meets neither of the definitional tests of the treaty — it is not resident in the United Kingdom for purposes of that signatory’s tax. and is a resident in the United States for purposes of this country’s tax — it plainly is not a “resident of the United Kingdom” exempted from United States tax by the Convention.
Apparently recognizing the impediments of the language of the exemptive provision interpreted in accordance with its terms and pursuant to the standards set out in the treaty-itself, the petitioner asserts that equality of tax treatment was the objective of the treaty and that furtherance of this objective compels adoption of its theory that exemption must be accorded whenever the burden of the tax would diminish such equality. Since, in general terms at least, the United Kingdom imposes no tax on capital gains, says the petitioner, no similar tax should be imposed by the United States here.
The immediate and compelling answer to this contention is that, as already noted, the language of the Convention itself not only fails to support the petitioner’s view, but is contrary to it. Moreover, it is particularly inappropriate for a court to sanction a deviation from the clear import of a solemn treaty between this Nation and a foreign sovereign, when, as here, there is.no indication that application of the words of the treaty according to their' obvious meaning effects a result inconsistent with the intent or expectations of its • signatories. It appears from the relevant materials instructive as to the intent of the parties to the Convention that the general purpose of the treaty was not to assure complete and strict equality of tax treatment — a virtually impossible task in light of the different tax structures of the two nations — but rather, as appears from the preamble to the Convention itself, to facilitate commercial exchange through elimination of double taxation resulting from both countries levying on the same transaction or profit; an additional purpose was the prevention of fiscal evasion. Certainly, neither of these purposes requires the granting of relief in the situation here presented. There is concededly no imposition of. a double tax on the gains of the petitioner, since neither it nor its beneficiaries are taxed thereon under United Kingdom law. See Harvard Law School, World Tax Series, Taxation in the United Kingdom, ¶¶ 9/8.1, 10/7.2, pp. 277, 307-308. Moreover, no impairment of, or obstacle to, trade or com-' mercial intercourse is threatened in the context of this case, and considerations of fiscal evasion are not here involved.
Even to the extent that one purpose of the Convention was to secure a measure of equality of tax treatment, it is apparent .from the face of the treaty itself that no invariable or inflexible equality was sought or intended. In fact, the treaty creates some inequalities of treatment. For example, the very exemption provided by Article XIV, on which the petitioner relies, is limited in its application to United Kingdom residents who are not "engaged in trade or business in the United States.” Thus, not even all United Kingdom residents are immune from capital gains taxation in this country, though United States residents doing business or conducting a trade in the United Kingdom would receive the full benefit of the absence of a general capital gains tax there. It appears that the treaty did not represent an attempt to equalize all disparities in táx treatment between its signatories. To the extent that complete equality was intended, it was specifically provided. We cannot, in such a context, read the treaty to accord unintended benefits inconsistent with its words and not compellingly indicated by its implications. To say that we should give a broad and. efficacious scope- to a treaty does not mean that we must sweep within the Convention what are legally and traditionally recognized to be domestic taxpayers riot clearly within its protectioris; we would not expect the United Kingdom to exempt similarly recognized British taxpayers not lucidly interided to be freed of its taxes.
This, of course, does not mean that the treaty fails to provide bilateral benefits to residents of both the United States and the United Kingdom. A resident of the United Kingdom realizing capital gains in this country is appropriately protected and exempt, and the Congress has adopted provisions fully implementing the operative dimensions of the treaty. The Internal Revenue Code contains sections desigped to give effect to exemptions of this type and to assure consistency with tax treaty obligations in general. See, e. g., Int. Rev. Code of 1954, §§ 894, 7852 (d). Our interpretation affords every beriefit negotiated for by the parties to the Convention on behalf of their respective residents and prevents an unintended tax windfall to a private party. The-language and purposes of the treaty are amply served by adhering to its clear import limiting exemption to “residents of the United Kingdom” falling within the exemptive purview. The petitioner, a resident American trust, is properly subject to United States income tax on its retained capital gains. Accordingly, the judgment below is
Affirmed.
Article II (3) of the Convention provides:
“In the application of the provisions of the present Convention by one of the Contracting Parties any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting Party relating to the taxes which are the subject of the present Convention.”
The preamble recites that the parties desired “to conclude a Convention for the avoidance of double taxation and the prevention pf fiscal evasion with respect to taxes on income.” See also Heárings before a Subcommittee of the Committee on Foreign Relations, on Conventions With Great Britain and Northern Ireland Respecting. Income and Estate Taxes, S. Exec. Docs. D and E, 79th Cong., 1st Sess. 1-2.’
Treatment of the petitioner trust as a taxable entity for purposes of construing the treaty exemption and imposition of liability for tax on its undistributed capital gains is not only mandated by the terms of the treaty itself, the apparent intention of its signato'ries, and the context- in which negotiated, but is consistent with long-standing administrative practice and regulations, see T. D. 5569, 1947-2 Cum. Bull. 100, §7.519 (c), and with the administrative interpretation accorded many other United States, tax conventions limiting such exemptions to items of income distributed or otherwise normally directly taxable to the trust beneficiaries. See, e. g., Australia, T. D. 6108, 1954-2 Cum. Bull. 614, § 501.10; Belgium, T. D. 6160, 1956-1 Cum. Bull. 815, §504.119; Switzerland, T. D. 6149, 1955-2 Cum. Bull. 814, §509.121.
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_counsel1
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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.
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 v. Bernard FOSTER, Appellant.
No. 83-1792.
United States Court of Appeals, District of Columbia Circuit.
Argued En Banc Dec. 5, 1985.
Decided Feb. 14, 1986.
J. Peter Byrne, Washington, D.C., (appointed by this court) for appellant.
Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Washington, D.C., was on brief, for appellee. Paul L. Knight, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.
James Klein and Mark S. Carlin, Attys., District of Columbia Public Defender Service, Washington, D.C., were on brief for amicus curiae urging continued application of the existing rule.
Before ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR and SILBERMAN, Circuit Judges.
SCALIA, Circuit Judge.
This is an appeal from conviction, after jury trial, on charges of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1982), and possessing a firearm not identified by serial number in violation of 26 U.S.C. §§ 5842, 5861(i). The firearm in question was a short-barreled shotgun found by the Metropolitan Police Department at the Argyle Variety Store in Northwest Washington, on a shelf beneath the counter at which the defendant was working. The principal basis of appeal is that there was inadequate evidence to establish the “knowing dominion and control,” United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981), necessary for constructive possession of an illegal firearm, see United States v. Lewis, 701 F.2d 972, 973 (D.C.Cir.1983). Highly relevant to this point is evidence introduced by the defendant, after the District Court’s denial of his motion for acquittal at the conclusion of the government’s case, that the defendant was not merely an occasional worker behind the counter, but was the manager of the store.
It has been the law of this circuit, first announced by dictum in Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963), that objection to denial of a motion for judgment of acquittal made at the close of the government’s case-in-chief is not waived by the defendant’s proceeding with the presentation of his evidence, so that the validity of an ensuing conviction must be judged on the basis of the government’s initial evidence alone. See, e.g., United States v. Lewis, 701 F.2d at 973. Because this circuit is apparently the only federal jurisdiction to hold that view, and because in the present ease the subsequently introduced evidence was of potentially determinative importance, on the motion of the panel hearing the case the court agreed to decide en banc the following issues:
(1) Should this Circuit abandon the so-called “nonwaiver” rule announced in Cephus v. United States, ... ?
(2) If so, should such change be effected prospectively?
The full court has had the benefit of briefing and oral argument by the parties, and of briefing by the District of Columbia Public Defender Service as an invited amicus.
I
Although the nonwaiver rule was first applied as a holding by this court in Austin v. United States, 382 F.2d 129, 138 & n. 20 (D.C.Cir.1967), the opinion in that case relied upon Cephus, which remains the only reasoned justification for the rule contained in our opinions. Cephus frankly acknowledged that the rule was contrary to federal authority:
[M]ost jurisdictions, including Federal circuits, have consistently followed the waiver rule; and the Supreme Court, in a case from the Ninth Circuit, has provided at least a dictum supporting it.
324 F.2d at 896 (footnotes omitted). The Supreme Court case alluded to was United States v. Calderon, 348 U.S. 160, 164 & n. 1, 75 S.Ct. 186, 188 & n. 1, 99 L.Ed. 202 (1954) — and though it was assuredly “at least a dictum” it was more likely a holding. Not only did the Court describe the waiver rule as law, but it specifically relied on the defendant’s testimony, offered after his motion to acquit was denied, in finding sufficient evidence of the crime of income tax evasion. Id. at 167, 75 S.Ct. at 189.
The Cephus court felt, however, that the waiver rule had been “imported from civil into criminal trials without considering the demands of our accusatorial system of criminal justice.” 324 F.2d at 896-97 (footnote omitted). Although quoting from a New Jersey case to the effect that the waiver rule “ ‘comes perilously near compelling the accused to convict himself,’ ” id. at 896 (quoting State v. Bacheller, 89 N.J.L. 433, 436, 98 A. 829, 830 (N.J.1916)), Cephus’s analysis did not rest upon any constitutional imperative. Rather, at the heart of its reasoning was the notion that requiring the defendant to forgo presentation of his case if he wishes to preserve his objection to denial of his motion to acquit is requiring him to “gamble on a prediction that the jury or appellate court will find [the government’s] evidence insufficient,” 324 F.2d at 896 — suggesting that under such compulsion there is no genuine waiver in the sense of a known and voluntary relinquishment of rights. Moreover, the court noted that what might have been viewed as the technical justification for finding waiver (viz., that the defendant had no categorical right to a ruling upon his motion of acquittal until he had rested his case) had been eliminated by Rule 29(a) of the Federal Rules of Criminal Procedure, 324 F.2d at 896-97. To the extent that Cephus rests on this rejection of a fictional “waiver,” the foundation of its reasoning has been eroded by our recent en banc decision in United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984), dealing with the similar assertion that a criminal defendant’s so-called “waiver” of his fifth amendment right by introducing psychiatric testimony (making him subject to compulsory examination by a government psychiatrist) is not a “genuine” waiver:
The eminent courts that put [the “waiver” theory] forth intended [it], we think, not as [an] explanation[ ] of the genuine reason for their result, but as [a] deviee[] — no more fictional than many others to be found — for weaving a result demanded on policy grounds unobtrusively into the fabric of the law____ [T]hey have denied the Fifth Amendment claim primarily because of the unreasonable and debilitating effect it would have upon society’s conduct of a fair inquiry into the defendant’s culpability.
Id. at 1113. So also with the “waiver” here; it is a conventional fiction used to describe and produce the result that the courts will not blind themselves to incriminating evidence introduced by the defendant who chooses to respond, rather than to demur, to the government’s case. As the Fifth Circuit has put it:
The doctrine’s operative principle is not so much that the defendant offering testimony “waives” his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the government’s case, he cannot insulate himself from the risk that the evidence will be favorable to the government. Requiring the defendant to accept the consequences of his decision to challenge directly the government’s case affirms the adversary process.
United States v. Belt, 574 F.2d 1234, 1236-37 (5th Cir.1978) (footnote omitted).
Of course underlying Cephus’s refusal to accept the fictional “waiver” was its policy judgment — similar to that urged by appellant and amicus here — that the result this convention produced was inadequate to “the demands of our accusatorial system of criminal justice.” 324 F.2d at 897. Specifically, the Cephus court felt that the waiver rule “seriously limits the right of the accused to have the prosecution prove a prima facie case before he is put to his defense.” Id. at 896 (footnote omitted). That policy justification has also been rendered questionable by subsequent litigation arising in this circuit. The Supreme Court’s opinion last term in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), decided in an analogous context that the government’s initial failure to make out its case, and the trial judge’s erroneous refusal to dismiss the prosecution at that stage, can be disregarded when the case continues and results in a conviction supported by adequate evidence. Specifically, Richardson held that if the trial judge refuses to enter a judgment of acquittal on motions made at the close of the government’s case and again at the close of all the evidence, whereafter the jury fails to agree upon a verdict, the bar of double jeopardy does not prevent the defendant from being retried, and convicted on the basis of the evidence at the second trial, “[r]egardless of the sufficiency of the evidence at petitioner’s first trial.” Id. 104 S.Ct. at 3086. The policy judgment that Richardson and the well established waiver rule share is that a defendant demonstrated to be guilty beyond a reasonable doubt on the basis of all the valid and admissible evidence will not be set free merely because, had an earlier erroneous ruling been made correctly, the trial would have ended before sufficient evidence to convict had been introduced. That balance between the procedural rights of the defendant and protection of society might have been struck differently; but the fact is that it has not been.
At the time Cephus, and later Austin, was decided, there was perhaps some reason to hope that the traditional rule we rejected would generally be displaced, and that the new rule we announced would find a broad acceptance. That hope has proved illusory. Although one treatise describes the waiver rule’s status as “uncertain” in several circuits, 2 C. Wright, Federal Practice and Procedure § 463 at 647 (2d ed. 1982), it is not clear that any other circuit has ever actually repudiated it. One circuit initially approved Cephus, in a case where it made no difference to the outcome since the government’s case-in-chief provided sufficient evidence to sustain the conviction. United States v. Rizzo, 416 F.2d 734, 736 & n. 3 (7th Cir.1969). Another circuit cited Cephus with approval, but in the context of rejecting the quite different “waiver” doctrine that failure to renew a motion to acquit at the close of all the evidence may waive the right to challenge the sufficiency of all the evidence on appeal. United States v. McIntyre, 467 F.2d 274, 276 n. 1 (8th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 972, 35 L.Ed.2d 274 (1973); see also United States v. Burton, 472 F.2d 757, 763 (8th Cir.1973). In any event, both these circuits subsequently reaffirmed the waiver rule, see United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir.1978); United States v. Geelan, 509 F.2d 737, 742 (8th Cir.1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975). All eleven numbered circuits and the District of Columbia Court of Appeals are now on record, in decisions subsequent to Cephus, as adhering to the waiver rule — as is the Supreme Court in post-Cephus dicta approving it, see McGautha v. California, 402 U.S. 183, 215-16, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972). The American Bar Association’s Standards for Criminal Justice adhere to the traditional rule, with commentary that specifically considers and rejects the Cephus position. Standards for Criminal Justice § 15-3.5(a) commentary at 95-96 (1982). We have reconsidered, and think it appropriate to abandon, a position which, almost a quarter-century after its first expression in our opinions, continues to be federal law in this circuit alone.
Accordingly, we hold that a criminal defendant who, after denial of a motion for judgment of acquittal at the close of the government’s case-in-chief, proceeds with the presentation of his own case, waives his objection to the denial. The motion can of course be renewed later in the trial, but appellate review of denial of the later motion would take into account all evidence introduced to that point. We emphasize that our holding only applies to the factual context addressed by the dictum of Cephus, the holding of Austin, and presented by the case before us. Specifically, we do not now decide the related question whether there has been a waiver of objection when the defendant proceeds with his evidence after the trial judge, in violation of Rule 29(a) of the Federal Rules of Criminal Procedure, refuses to rule upon his acquittal motion in the face of a “clear demand” by defendant, thereby depriving him of the opportunity of testing the government’s case. See, e.g., United States v. Rhodes, 631 F.2d 43, 44-45 (5th Cir.1980); United States v. House, 551 F.2d 756, 759-60 (8th Cir.), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977). Nor do we overrule the precise holding of the Cephus opinion itself — which, after delivering its influential dictum criticizing the waiver rule in the present context, simply refused to extend the rule to the situation where, after the defendant moving for acquittal declined to proceed with his own case, inculpatory evidence was introduced by one of his co-defendants. 324 F.2d at 897. See also, e.g., United States v. Lopez, 576 F.2d 840, 843 (10th Cir.1978); United States v. Belt, 574 F.2d at 1236. Finally, we do not address the question whether, after proceeding with his defense following denial of his mid-trial motion for acquittal, the defendant must renew that motion at the close of all the evidence in order to preserve for appeal (and not “waive”) his objection to the sufficiency of all the evidence. See, e.g., United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977) (citing cases); United States v. Perez, 526 F.2d 859, 863-64 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); but see Cephus, 324 F.2d at 895 n. 7 (dictum). We note in passing that in order to spare their clients at least the necessity of litigating this last point, defense counsel, now that preservation of their objection to denial of the mid-trial motion is no longer assured, would be well advised to renew the motion at the conclusion of their case.
II
We need discuss the second issue only briefly. We find that it was reasonable — indeed, the only responsible course— for counsel for defendant to proceed on the assumption that he had nothing to lose in the trial below by proceeding with the defendant’s evidence. That was the clear law of this circuit, repeated as recently as 1983. United States v. Lewis, 701 F.2d at 973. While it may be true that in light of the great weight of contrary authority there was reason to suspect that we (or the Supreme Court) might change the circuit law, it would certainly not have been prudent for counsel to withhold the defendant’s evidence on the slim chance that that would occur in this very case. Thus, unlike the rule of criminal procedure whose overruling was announced and applied in United States v. Sheppard, 569 F.2d 114, 117 (D.C.Cir.1977) (holding that corroboration of the complainant’s testimony would no longer be required for conviction of sexual offenses), the rule here is likely to have induced reliance which substantially affected conduct of the defense. To change the ground rules after the trial would not merely deprive the defendant of a benefit he thought he had, but would retroactively convert a thoroughly sensible trial tactic into a disastrous one.
Whether or not, as appellant suggests, applying our new rule to the present case would violate the due process clause, cf. Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); United States v. Henson, 486 F.2d 1292, 1305-08 (D.C.Cir.1973) (en banc), we are persuaded that it would not be desirable. We note that the United States does not oppose application of the rule prospectively only. Accordingly, we will continue to follow Austin in the present case and in other cases that came to trial before issuance of this opinion.
The remaining issues in this appeal, and its final disposition, are left to the panel, whose opinion is issued simultaneously with this en banc opinion.
So ordered.
. See Colella v. United States, 360 F.2d 792, 802 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); United States v. Keuylian, 602 F.2d 1033, 1040-41 (2d Cir.1979); United States v. Trotter, 529 F.2d 806, 809 n. 3 (3d Cir.1976); United States v. Heller, 527 F.2d 1173 (4th Cir.1975); United States v. Perry, 638 F.2d 862, 870 (5th Cir.1981); United States v. Black, 525 F.2d 668, 669 (6th Cir.1975); United States v. Roman, 728 F.2d 846, 858 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360. 80 L.Ed.2d 832 (1984); United States v. Wetzel, 514 F.2d 175, 177 (8th Cir.), cert. denied, 423 U.S. 844, 96 S.Ct. 80, 46 L.Ed.2d 65 (1975); United States v. Martinez, 514 F.2d 334, 337 (9th Cir.1975); United States v. Boss, 671 F.2d 396, 401 (10th Cir.1982); United States v. Contreras, 667 F.2d 976, 980 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); Hairston v. United States, 497 A.2d 1097, 1104 n. 12 (D.C.1985).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_casetyp1_6-3
|
J
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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".
The COMMONWEALTH OF PUERTO RICO on the Relation of Carlos S. QUIROS, Secretary, Department of Labor and Human Resources, Plaintiff-Appellant, v. Louis BRAMKAMP, et al, Defendants-Appellees.
No. 724, Docket 79-7777.
United States Court of Appeals, Second Circuit.
Argued Feb. 4, 1981.
Decided July 28, 1981.
Paul A. Lenzini, Washington, D. C. (Luis Guinot, Jr., Charles S. Fax, and Lynda Troutman O’Sullivan, Washington, D. C. and Harry H. Wise, New York City, on the brief), for plaintiff-appellant.
Thomas F. Bacas, Washington, D. C. (S. Steven Karalekas and Charles, Karalekas, Bacas & McCahill, Washington, D. C., J. Kevin McKay and Hays, St. John, Abram-son & Heilbron, New York City, for defendants-appellees.
T. Timothy Ryan, Jr., Sol. of Labor, Nathaniel Baccus, III, Assoc. Sol., Lois G. Williams, Deputy Assoc. Sol., Ruth E. Peters and Harry L. Sheinfeld, Washington, D. C., submitted a brief for the Secretary of Labor, amicus curiae.
Before FEINBERG, Chief Judge, NEWMAN, Circuit Judge, and MISHLER, District Judge.
Honorable Jacob Mishler, Senior United States District Judge, Eastern District of New York, sitting by designation.
MISHLER, District Judge:
On January 12, 1979 the Commonwealth of Puerto Rico filed a complaint in the United States District Court for the Southern District of New York against 55 defendants engaged in the apple-growing industry in New York State. The Commonwealth seeks to declare illegal and enjoin alleged discrimination in the hiring and treatment of Puerto Ricans as temporary agricultural laborers. The acts of defendants are claimed to be in violation of the Wagner-Peyser Act of 1933, as amended, 29 U.S.C. §§ 49-49k (Supp.1980), the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§ 1101-1524 (Supp.1981), and regulations promulgated thereunder.
Shortly prior to the commencement of this action the Commonwealth filed a suit in the United States District Court for the Western District of Virginia against 52 defendants engaged in the apple-growing industry. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et a 1., Civ. No. 79-0007 (W.D.Va. January 12, 1979). The complaint in the Virginia case is virtually identical to the one in the instant action.
The defendants herein moved to dismiss the complaint. One asserted basis for dismissal was that the Commonwealth lacked standing to prosecute the action. On April 17, 1979, Judge Turk of the Western District of Virginia, faced with the identical issue, filed a memorandum opinion and order dismissing the Commonwealth’s complaint on the ground that it lacked standing as parens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et al, 469 F.Supp. 928 (W.D.Va. 1979). On September 28, 1979, Judge Duf-' fy filed a memorandum granting defendants’ motion to dismiss the action commenced in the Southern District of New York on the basis of the reasoning found in the decision of Judge Turk. However, the Court of Appeals for the Fourth Circuit subsequently reversed the decision of Judge Turk, finding that the Commonwealth of Puerto Rico has standing as parens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., 632 F.2d 365 (4th Cir. 1980). Thereafter, argument on this appeal was heard.
FACTS
Each fall season thousands of temporary farm workers are needed by East Coast apple growers to bring in the apple harvest. Because workers are usually not available in adequate numbers in the immediate locality, growers have customarily employed both out of-state and foreign workers.
With respect to foreign labor, the Immigration and Nationality Act, as amended, 8 U.S.C. §§ 1101-1524 (Supp.1981), authorizes the admission of aliens to serve as temporary agricultural laborers only “if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii). The Immigration and Naturalization Service regulations insure the exhaustion of the domestic work force by requiring that a grower’s petition for the admission of aliens must be accompanied by a certification from the Secretary of Labor that qualified domestic workers are not available. 8 C.F.R. § 214.2(h)(3). The temporary labor regulations issued by the Secretary of Labor provide that such certification will issue only after an active attempt to recruit domestic workers has been made. 20 C.F R. § 655.203(d).
The recruitment of domestic workers is usually undertaken through the Interstate Clearance System (the “ICS”), an interacting network of national, state and local employment offices established during the great depression by the Wagner-Peyser Act of 1933, as amended, 29 U.S.C. §§ 49-49k (Supp.1980). To utilize the ICS, a grower must accompany its application for certification to the Regional Administrator of the Department of Labor with a job offer for domestic workers which is referred to and circulated through the ICS network for at least sixty days. The application for certification of a need for foreign labor is granted or denied, in whole or in part, depending on the number of domestic workers who accept jobs through the ICS.
The background and allegations relating to discrimination by defendants against Puerto Rican farm workers are as follows:
In furtherance of its efforts to reduce unemployment, the Commonwealth, since 1976, has attempted to refer agricultural workers to the East Coast apple growers through the ICS. These efforts have met with resistance on the part of the apple growers who have traditionally employed Jamaican workers. In 1976 and 1977 few Puerto Ricans gained employment through the ICS. It has been established that the growers were legally justified in their unwillingness to hire Puerto Ricans in those years by the existence of Public Law 87 of the Commonwealth which required mainland employers to negotiate service contracts with Puerto Ricans containing provisions more onerous on the employer than those required by federal law, and further, subjected non-complying employers to possible criminal penalties. Hernandez Flecha, et al. v. Quiros, 567 F.2d 1154 (1st Cir. 1977), cert. denied, 436 U.S. 945, 98 S.Ct. 2846, 56 L.Ed.2d 786 (1978) (Public Law 87 rendered Puerto Rican workers “unavailable” within the meaning of the Immigration and Nationality Act).
In July 1978 the legislature of Puerto Rico attempted to remedy the problems which had been caused by Public Law 87 by approving an amendment which authorized the Secretary of Labor of Puerto Rico to exempt employers from its requirements. Immediately thereafter, the Secretary of Labor of Puerto Rico, Carlos Quiros, announced his intention to exempt from Public Law 87 the apple growers whose 1978 job orders would be transmitted through the ICS. The Department of Labor, through the ICS, then cleared a total of 2,318 job orders for the East Coast apple harvest to Puerto Rico. On August 14, 1978, certification decisions were made. By that date, only two weeks after the job orders had been cleared to Puerto Rico, Secretary Quiros had already recruited 1,094 Puerto Rican workers. Certification applications of the defendant growers were denied, in whole or in part, because of the apparent availability of Puerto Rican workers to fill the 2,318 job orders.
After the certification applications were denied, but before all of the job orders were filled, a number of associations representing East Coast fruit growers filed an action in the United States District Court for the Western District of Virginia seeking an injunction ordering the Secretary of Labor to certify the unavailability of domestic workers for 1,460 jobs and ordering the Commissioner of the Immigration and Naturalization Service to issue 1,460 additional visas for Jamaican workers. The injunction was granted because it appeared unlikely that Puerto Rican workers would be available in sufficient numbers to timely begin the harvest.
However, before the beginning of the harvest, Secretary Quiros successfully recruited all of the workers for whom job orders had been received through the ICS. Of the 2,318 workers recruited, 611 were assigned to work for the New York apple growers. In granting the injunction which admitted the Jamaican workers the district court warned the growers that they were not relieved of their responsibility to hire those domestic workers who were present to begin the harvest. Nevertheless, the growers failed to hire many of the Puerto Ricans who had been referred to them. As a result, of those Puerto Ricans recruited only 992 left for the mainland. Flights for the remainder were cancelled following a request to Secretary Quiros by the United States Department of Labor that any further referrals be cancelled since many of the growers were refusing to employ the Puerto Rican workers who had already arrived at the orchards. Of the 386 Puerto Ricans who ultimately arrived at the New York orchards, fewer than 50 were employed to work through the 1978 harvest.
DISCUSSION
In order to present a justiciable case and controversy a litigant must possess a sufficient interest in the outcome of the action. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In its capacity as parens patriae a state, and here, the Commonwealth, may sue to “prevent or repair harm to its ‘quasi-sovereign’ interests.” Hawaii v. Standard Oil Co. of Calif., 405 U.S. 251, 258, 92 S.Ct. 885, 889, 31 L.Ed.2d 184 (1972). A state possesses and may assert a quasi-sovereign interest in its general economy, Georgia v. Pennsylvania
Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), and in protecting the welfare of its citizens, Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923). The asserted quasi-sovereign interests will be deemed sufficiently implicated to support parens patriae standing only if “the injury alleged affects the general population of a State in a substantial way.” Maryland, et al. v. Louisiana, - U.S. -, -■, 101 S.Ct. 2114, 2124, 68 L.Ed.2d 576 (1981). The general population need not be directly affected for “even where the most direct injury is to a fairly narrow class of persons, there is precedent for finding state standing on the basis of substantial generalized economic effects.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d 668, 675 (D.C.Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 584 (1976). Thus, in Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, it was held that the state had standing to enjoin a conspiracy to fix anti-competitive rail rates. While it was the rail companies that were directly affected by the overcharges, the Supreme Court recognized that the citizens of the state indirectly suffered substantially from the alleged violation:
Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.
324 U.S. at 451, 65 S.Ct. at 723. Similarly, in Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where Missouri was granted leave to file a bill seeking to enjoin the discharge of sewage into the Mississippi, it was recognized that “substantial impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river, including its commercial metropolis, would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 344. Accord, Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907).
In the instant case, all future migrant workers who might be refused employment due to the alleged unlawful discrimination, and the families of these workers, stand to be directly injured. Even if those directly injured are not substantial enough in number for their interests to be deemed “public,” and therefore properly litigated by the state, compare Maryland, et al. v. Louisiana, - U.S. -, 101 S.Ct. 2114, 68 L.Ed.2d 576; Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117, a broader range of state interests beyond those of the workers are involved. The Commonwealth’s efforts to secure the rights of migrant workers will most significantly benefit the general population whose welfare is dependent upon the health of the Puerto Rican economy.
The activities of the growers will significantly affect the economy of Puerto Rico. While the impact on the economy of the unemployed status of the workers and the care of their families is the Commonwealth’s concern, the harm is more fundamental and pervasive. Puerto Rico is confronted with an average adult unemployment rate of 18.5%. For many years the Commonwealth government has attempted to alleviate unemployment by placing Puerto Rican workers in jobs on the mainland. In the period of 30 years prior to 1978, 350,000 Puerto Rican workers were placed in agricultural and non-agricultural jobs on the mainland. In 1978, 3,967 workers were actually placed in agricultural jobs outside the apple industry.' The figures reflect the importance of migrant labor to the economy of Puerto Rico. The Fourth Circuit described the injury resulting from discrimination against Puerto Rican workers as follows:
The number of farm workers temporarily employed annually [by the defendants] does not accurately measure the potential effect of the damaged recruitment efforts on all of Puerto Rico’s citizens. The island’s officials are coping with an almost unmanageable unemployment problem. Its economy is in dire straits. The morale of the average Puerto Rican citizen under the circumstances can be expected to be extremely low. Deliberate efforts to stigmatize the labor force as inferior carry a universal sting.
... The apparent inability of the United States government, through the Department of Labor, to grant Puerto Ricans equal treatment with other citizens or even with foreign temporary workers must certainly have an effect which permeates the entire island of Puerto Rico. Residual injuries to the Commonwealth effort are, to say the least, very serious.
Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., 632 F.2d at 370. A statewide conspiracy to discriminate against Puerto Ricans by apple growers who except for such discrimination would have employed a significant number of Puerto Rican laborers will adversely affect the continuing effort of the Commonwealth to secure work for its citizens.
A final factor to consider in determining whether to allow a state to proceed as parens patriae is “the presence or absence of a more appropriate party or parties capable of bringing suit.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d at 675. While this consideration is derived from the traditional concept of par-ens patriae, that is, the King’s power as guardian of persons under legal disability to act for themselves, a state seeking to proceed as parens patriae need not demonstrate the inability of private persons to obtain relief if parens patriae standing is otherwise indicated. See, e. g., Maryland et al. v. Louisiana,- U.S. -, 101 S.Ct. 2114, 68 L.Ed.2d 576; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. Rather, “[t]he arguments in favor of allowing such standing become less compelling, as it becomes more feasible to achieve complete relief through suits by the parties actually aggrieved.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d at 675 n.42. In this case, it is unlikely that the individual Puerto Ricans who were injured by the alleged discrimination in 1978 will achieve the complete relief sought by the Commonwealth. First, the individual workers are separated from the mainland, which would make litigation of the individual claims difficult and costly. There is no assurance that the individual workers could bear the cost of a lawsuit that would achieve complete relief. Moreover, the interests of the individual laborers who were deprived of employment in 1978 are not necessarily coextensive with those of the public which the Commonwealth represents. Thus, even if the workers could marshal the resources to institute and effectively prosecute actions or a class action in their own behalf, there is no assurance that all named defendants herein would be sued or that relief against widespread and future discrimination would be actively pursued. The vindication of the rights of all future migrant laborers and the public of Puerto Rico should not be made dependent upon the possible relief obtained by the individual workers.
Accordingly, we believe that the Commonwealth of Puerto Rico has standing as parens patriae to litigate this action. The decision of the district court is reversed and the cause is remanded for further proceedings.
. Of the 55 defendants, 30 are employers and 25 are either officers, partners or employees thereof.
. Frederick County Fruit Growers Association, Inc. v. F. Ray Marshall, et al, 78 Civ. 0086(H) (W.D.Va. August 31, 1978), appeal dismissed and remanded, 594 F.2d 857 (4th Cir. 1979).
. As a Commonwealth of the United States, Puerto Rico may represent its citizens as par-ens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et al, 632 F.2d 365, 369 (4th Cir. 1980). The Department of Labor of Puerto Rico is under a statutory duty to promote the interests of laborers. 3 P.R. Laws Ann. §§ 305-06. It is in fulfillment of this obligation that the Secretary of Labor brings this action.
. The term parens patriae was traditionally used to refer to “the King’s power as guardian of persons under legal disabilities to act for themselves,” which function passed to the states in this country. Hawaii v. Standard Oil Co. of Calif., 405 U.S. 251, 257, 92 S.Ct. 885, 888-89, 31 L.Ed.2d 184 (1972).
Most of the decisions dealing with the right of a state to sue as parens patriae have been made in the context of suits between states or by one state against a citizen of another state in which the original jurisdiction of the Supreme Court has been invoked pursuant to Article III, § 2 of the United States Constitution. Nevertheless, the basic principles of parens patriae standing discussed in those cases have application to suits by a state against a citizen of another state at the district court level. In order to properly invoke the original jurisdiction of the Supreme Court a state must initially prove that the lawsuit has been brought to protect state interests and not those of its individual citizens. Maryland, et al. v. Louisiana, -U.S. -,-, 101 S.Ct. 2114, 2124, 68 L.Ed.2d 576 (1981). Additional considerations are involved in a determination of whether to exercise jurisdiction in original suits. In all such suits the Court will exercise jurisdiction only when plaintiff has “established the ‘strictest necessity’ required for invoking [the] Court’s original jurisdiction.” Maryland, et al. v. Louisiana, - U.S. at -, 101 S.Ct. at 2136 (Rehnquist, J., dissenting) (quoting Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 505, 91 S.Ct. 1005, 1013, 28 L.Ed.2d 256 (1971). Eleventh Amendment considerations are also involved in suits between states. See, e. g., New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883).
. The quasi-sovereign interest first recognized was that “independent of and behind the titles of its citizens, in all the earth and air within its domain,” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907), which allowed states to proceed as par-ens patriae to protect their vital natural resources. E. g., New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (suit to enjoin New Jersey from directing sewage into New York Bay); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (suit to enjoin manufacturing company from discharging noxious gas over five Georgia counties); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907) (suit to enjoin the diversion of water from the Arkansas River); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (suit to enjoin discharge of sewage into the Mississippi).
. Affidavit of Manuel Rodriguez Escalera, Assistant Director, Migration Division, Department of Labor (March 21, 1979).
. Shortly after this action was dismissed by the district court a class action suit was filed on behalf of mainland and Puerto Rican migrant workers against certain New York apple growers. The suit was brought in part by 13 Puerto Rican workers involved in the 1978 harvest who seek damages and injunctive relief against some of the same defendant apple growers sued by the Commonwealth in this case. Juan Valderrama Rios, et al. v. Secretary of Labor F. Ray Marshall, et al., No. 79 Civ. 5711 (S.D.N.Y. October 22, 1979).
. We also note that the Commonwealth in this case seeks injunctive relief only. Therefore, even if the individual workers were successful in recovering damages from some or all of the growers there would be no possibility of double recovery in damages. Such a possibility would weigh against a finding of parens patriae standing. Hawaii v. Standard Oil Co. of Calif., 405 U.S. at 261-62, 92 S.Ct. at 891.
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_respondentstate
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37
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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.
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., et al., Petitioners
v.
CITY OF NEW YORK, NEW YORK, et al.
No. 18-280
Supreme Court of the United States.
April 27, 2020
Brian T. Stapleton, White Plains, NY, Paul D. Clement, Erin E. Murphy, Matthew D. Rowen, William K. Lane III, Kirkland & Ellis LLP, Washington, DC, for Petitioners.
Jeffrey L. Fisher, O'Melveny & Myers LLP, Menlo Park, CA, Bradley N. Garcia, O'Melveny & Myers LLP, Washington, DC, Zachary W. Carter, Corporation Counsel, Anton Metlitsky, Jennifer B. Sokoler, O'Melveny & Myers LLP, New York, NY, Richard Dearing, Claude S. Platton, Elina Druker, Ingrid R. Gustafson, Susan Paulson, New York, NY, for Respondents.
Per Curiam.
In the District Court, petitioners challenged a New York City rule regarding the transport of firearms. Petitioners claimed that the rule violated the Second Amendment. Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners' claim. See 883 F.3d 45 (C.A.2 2018). We granted certiorari. 586 U.S. ----, 139 S.Ct. 939, 203 L.Ed.2d 130 (2019). After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. App. 48. Petitioners' claim for declaratory and injunctive relief with respect to the City's old rule is therefore moot. Petitioners now argue, however, that the new rule may still infringe their rights. In particular, petitioners claim that they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City responds that those routine stops are entirely permissible under the new rule. We do not here decide that dispute about the new rule; as we stated in Lewis v. Continental Bank Corp. , 494 U.S. 472, 482-483, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) :
"Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. See, e.g., Deakins v. Monaghan , 484 U.S. [193] at 204 [108 S.Ct. 523, 98 L.Ed.2d 529 (1988) ] ; United States v. Munsingwear, Inc. , 340 U.S. 36, 39-40 [71 S.Ct. 104, 95 L.Ed. 36] (1950). However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc. , 404 U.S. 412, 415 [92 S.Ct. 574, 30 L.Ed.2d 567] (1972)."
Petitioners also argue that, even though they have not previously asked for damages with respect to the City's old rule, they still could do so in this lawsuit. Petitioners did not seek damages in their complaint; indeed, the possibility of a damages claim was not raised until well into the litigation in this Court. The City argues that it is too late for petitioners to now add a claim for damages. On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City's old rule. The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.
It is so ordered.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_weightev
|
A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
PEN-O-TEX OIL & LEASEHOLD CO. v. BIG FOUR OIL & GAS CO.
Circuit Court of Appeals, Third Circuit.
December 19, 1927.
No. 3696.
1. Mines and minerals @=>79(7) — Privity between plaintiff and defendant is necessary to authorize recovery for breach of contracts and covenants in oil lease.
In action for damages for breaches of contracts and covenants in oil lease, plaintiff must show either privity of contract or privity of estate between itself and defendant.
2. Mines and minerals <§=>74 — Privity between plaintiff, who assigned oil lease, and defendant, who bought half interest from assignee, held not to exist, authorizing recovery for defendant’s breach of contract.
• Where plaintiff assigned oil lease in contract not extending to successors and assigns, and assignee with plaintiff’s' knowledge and consent sold one-half interest to defendant, which assumed its proportion of obligations of assignee to plaintiff for drilling, there was no privity of contract between plaintiff and defendant, authorizing recovery for breach, notwithstanding that defendant controlled plaintiff’s assignee by stock ownership.
3. Mines and minerals <§=>74 — Privity between plaintiff, agreeing to assign lease to another, and defendant, assignee of such other, held not to exist, authorizing recovery for defendant’s breach of contract.
Where plaintiff made contract wherein it did “agree to sell and assign” certain leased premises to another, which in turn made contract with defendant whereby it did “agree to sell and assign” half interest and promised assignments were never made, there was no privity of estate between plaintiff and defendant, authorizing suit for breach of contract or lease, since agreement to assign is not assignment; doctrine of covenants running with land not availing plaintiff, since it is based on fact that some estate has been transferred.
4. Mines and minerals <§=>74 — “Agreement to assign” oil lease, is not “assignment” of “lease.”
Agreement to assign oil lease is not “assignment” of lease itself, since no present transfer of estate is intended or involved, and lease must contain words importing present demise.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assignment.]
In Error to the District Court of tbe United States for tbe Western District of Pennsylvania; Robert M. Gibson, Judge.
Action by tbe Pen-O-Tex Oil & Leasehold’ Company against tbe Big Four Oil & Gas Company and another. Judgment for tbe named defendant, and plaintiff brings error.
Affirmed.
William T. Tredway, of Pittsburgh, Pa., for plaintiff in error. '
John W. Dunkle, of Pittsburgh, Pa., for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
Tbe Pen- , O-Tex Oil & Leasehold Company instituted this suit against the Pittsburgh Western Oil Company and the Big Four Oil & Gas Company, all corporations. The Big Four Oil & Gas Company filed an affidavit of defense in the nature of a demurrer and, on hearing, the court entered judgment for that company alone. The Pittsburgh Western Oil Company, though served with process, either did not appear or, because of an intimated lack of financial responsibility, was left out of the case. This writ of error, however, is directed to the judgment for the Big Four Oil & Gas Company. We shall, therefore, deal only with questions raised as to its liability.
In the interest of brevity, we shall, in stating the facts of the case, abbreviate names and omit dates and many figures.
Downie, owner, leased 140,000 acres of land in Texas to Kuykendall for oil and gas mining purposes under covenants (extending to their respective heirs and assigns) that the lessee should commence the drilling of a well within a year or, on default, the lease should terminate, unless continued by payment of a certain yearly rental. Kuykendall assigned thirty-three sections of the leased land to Cranston (his heirs, etc.) who, by separate contract with Kuykendall, undertook to drill a test well on the premises.
Cranston assigned his leased thirty-three sections and also the drilling contract between himself and Kuykendall to the Pen-O-Tex, the plaintiff in this suit, which assumed Cranston’s contractual well-drilling obligations. Pen-O-Tex then entered into a contract with Fairchild (extending to their heirs, successors, etc.) whereby he engaged to drill the well. With the year expired and no well drilled, Pen-O-Tex entered into a contract with the Pittsburgh Western, one of the defendants, whereby it agreed to sell and assign eighteen of its leased thirty-three sections to the latter company with an undertaking by that company to assume all the obligations of the Pen-O-Tex in the drilling contracts. This contract between Pen-O-Tex and Pittsburgh Western did not extend to their successors and assigns. On the same day, the Pittsburgh Western, with the knowledge and consent of the Pen-O-Tex, entered into a contract with the Big Four, the other defendant, whereby it agreed to sell and assign to the latter company an undivided one-half interest in the same eighteen sections “now owned” by it, and sold and transferred to the Big Four an undivided one-half interest in personal property located on the leased premises consisting of a drilling outfit, under terms whereby the latter company assumed its proportion of the obligations of the Pittsburgh Western to the Pen-O-Tex for the drilling of a well and one-half the expense thereof. The Big Four controlled the Pittsburgh Western by stock ownership.
No well was completed and no rental paid in accordance with the terms of the original lease and, as a result, the leasehold interests of the plaintiff, and of the defendants, if they had any, were lost. The Pen-O-Tex then brought this suit against the Pittsburgh Western and the Big Four on the contracts of the Big Four with the Pittsburgh Western and the Pittsburgh Western with the Pen-O-Tex to recover — what?
The plaintiff’s pleading answers this question by a formal demand that it “recover * * * $500,000,” but it does not clearly state the legal character of the claim. Seemingly the action is in assumpsit, recovery is based on breaches of contracts and breaches of covenants in a lease, and in both cases the demand sounds in damages. We shall discuss the questions in that light.
To maintain the present action there must be either privity of contract or privity of estate between Pen-O-Tex, the plaintiff, and the Big Four, the defendant in the judgment. Mallalieu’s Estate, 42 Pa. Super. Ct. 103.
The Big Four and Pen-O-Tex were not parties to any contract put in evidence. The only contract in which the Big Four was a party was the one it made with the Pittsburgh Western. Although by that contract it assumed performance of a part of the Pittsburgh Western’s obligation to the Pen-O-Tex, and, conceivably, became liable to the former company, that undertaking does not make the Big Four a party to the Pen-O-Tex-Pittsburgh Western contract so that it may be sued by the Pen-O-Tex. Goodyear Shoe Machine Co. v. Dancel (C. C. A.) 119 F. 692.
The Pen-O-Tex was a stranger to the only agreement in the record made by the Big Four, and hence there is no privity of contract between the two corporations and, accordingly, no right of action on that ground arising in the plaintiff, unless, indeed, the Pittsburgh Western and the Big Four may, because of the latter’s ownership of the stock of the former, bo. regarded a corporate entity under the law of Pennsylvania Canal Co. et al. v. Brown et al. and Brown et al. v. Pennsylvania Canal Co. et al. (C. C. A.) 235 F. 669; Brown et al. v. Pennsylvania R. Co. and Pennsylvania R. Co. v. Brown et al. (C. C. A.) 250 F. 513 and kindred eases. The facts as pleaded do not establish that status.
The plaintiff, however, maintains more earnestly that, as to a part of the premises, the lease, beginning with Downie to Kuykendall, ran through mesne assignees to the Big Four; that the original covenant to drill a well ran with the land to the last assignee; that there is privity of estate between the Big Four, the last assignee, and the plaintiff, an intermediate assignee then still retaining an interest in the land with the original lessor; and that, in consequence, it may maintain this action under the accepted theory, when applicable, that every successive assignee of a lease, however remote in the devolution of the leasehold title, is liable to a preceding holder on an obligation of the lease breached during their joint interest and consequent privity of estate. Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 16 A. 799, 10 Am. St. Rep. 553; Knupp v. Bright, 186 Pa. 181, 40 A. 414; Hale v. Gypsy Oil Co., 113 Kan. 176, 213 P. 824; Stone v. Marshall, 188 Pa. 602, 41 A. 748, 1119.
But the doctrine of covenants running with the land is based on an essential legal fact that some estate to which the covenant may attach as its vehicle or conveyance has been transferred. 11 Cyc. 1081; Flanikin v. Neal, 67 Tex. 629, 4 S. W. 212. To apply this law to the instant ease it must appear that the leased land or some interest in it was assigned by Pen-O-Tex to the Big Four. We have found no evidence of such an assignment. There was the well-drilling contract between Pen-O-Tex and Pittsburgh Western wherein the former did “agree to sell and assign” to the latter portions of the leased premises “to be selected by the president” of the Pen-O-Tex. So far as the record shows the promised assignment was never made and the reserved right of selection never exercised. Then there was the contract between the Pittsburgh Western and the Big Pour, executed the same day, whereby the Pittsburgh Western in turn did “agree to sell and assignl’ to the Big Pour a one-half interest in the premises it then “owned”; but again the record fails to show that the Pen-O-Tex ever made the assignment it promised or that it owned the premises as recited.
We construe these agreements not as assignments of the lease but as agreements to assign a portion of the leasehold. To render an instrument a lease as distinguished from an agreement to lease, it must contain words importing a present demise. 18 A. & E. Enc. of Law (2d Ed.) 598. A mere agreement for a lease does not create a tenancy or give to the party with whom it is made a right of possession. Billings v. Canney, 57 Mich. 425, 24 N. W. 159. And so, an agreement merely to assign a lease is not an assignment of the lease itself, for in such an agreement no present transfer of the estate or of a lesser interest in the estate is intended or involved. In consequence such an agreement does not establish privity of estate in the parties or cause covenants of the lease to run to either of them.
As the District Court was right in finding no privity of contract and no privity of estate between the parties to the suit, its judgment must be
Affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel2_1_2
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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".
MOSS et al. v. SHERBURNE et al.
(Circuit Court of Appeals, First Circuit.
March 3, 1926.
On Petition for Rehearing April 6, 1926.)
No. 1855.
1. Exceptions, bill of <S=4I (1)— Bill of exception filed within extension of time granted therefor held timely (District Court rule 19).
Bill of exceptions, filed within extension of time granted therefor when motion for new trial was overruled, held, under District Court rule 19, timely filed.
2. Sales <@=>89 — Whether buyer, after seller’s attempted cancellation of contract, waived rights thereunder by making new contract for part of same goods, held for jury.
Whether buyer of sugar, after seller’s attempted cancellation of contract by making new contract for part of same sugar, waived or relinquished rights under first contract, held, under conflicting evidence as to whether he was told that he was purchasing same sugar, question for jury.
3. Appeal and error <@=>1050(1) — Error, if any, * in admitting evidence of market value at place other than place of delivery, in action for breach of contract to sell sugar, held not prejudicial.
Where jury, in calculating damages for breach of contract to sell sugar f. o. b. Buenos Aires, did not consider evidence of market value in New York, but clearly considered price fixed in a second contract c. i. f. New York, in determining market value in Buenos Aires, held, error, if any, in admitting proof of” market value in New York, was not prejudicial..
4. Sales <@=>418(2) — Measure of damages for seller’s breach of contract is difference between contract price and market value at time of breach and place of delivery.
Measure of damages for breach, of contract by seller is difference between contract price and market value of goods at time of breach and place of delivery, or, if there is no market value at such place, then at nearest available market.
5. Sales <@=>416(2) — In action for breach of contract to sell sugar, evidence of contract price under second contract between same parties for same sugar held admissible as evidence of market, value.
In action for breach of contract to sell sugar f. o. b. Buenos Aires, evidence of contract price of same sugar under a second contract c. i. f. New York between same parties held properly admitted as evidence of market value of sugar described in first contract.
6. Appeal and error <@=l 151(1).
Clerical error in computing damages for breach of contract, if possible, may be corrected by remittitur, without new trial.
On Petition for Rehearing.
7. Appeal and error <@=>835(2).
Defense, first asserted on petition for rehearing on second appeal of case, held not available.
In. Error to tlie District Court of the United States for the District of Massachusetts; James M. Morton, Judge.
Action by John H. Sherburne and others, trustees, against Jacinto Moss and others. Judgment for plaintiffs, and defendants bring error.
Affirmed, on condition remittitur be. filed; otherwise, .reversed, and new trial granted.
See, also, 295 E. 769.
Gaston, Snow, Saltonstall & Hunt, of Boston, Mass. (Dunbar E. Carpenter and Thomas Hunt, both of Boston, -Mass., of counsel), for plaintiffs in error.
Howard Stockton, Jr., and John H. Sherburne, both of Boston, Mass. (Sherburne, Powers & Needham and Warren, Garfield, Whiteside & Lamson, all of Boston, Mass., on the brief), for defendants in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge.
This is a writ of error to the United States District Court for the District of Massachusetts to reverse a judgment entered in an action of contract brought by the receivers in bankruptcy of E. R. Sherburne Company, a Massachusetts corporation, to whose rights the present defendants in error have succeeded against Moss & Co., plaintiffs in error, co-partners, with a-usual place of business at Buenos Aires in the Argentine Republic, to recover damages for breach of a contract to deliver to the Sherburne Company 23,000 tons of sugar; Eor convenience the plaintiffs in error will be referred to as “Moss” .and the defendants in error as “Sherburne.”
A written contract was entered into by Sherburne with Moss on April 14, 1920, for the purchase of 23,000 tons of sugar at $332 per ton f. o. b. Buenos Aires. This contract was as follows:
“Minford, Lueder & Co., 106 Wall Street, New York.
“Contract No. 2033. April 14, 1920.
“Messrs. Moss & Co. Buenos Aires, Argentine — Gentlemen: We beg to confirm the purchase on this date from your good selves through your New York representatives, Messrs. Aboab Hermanos of Buenos Aires and New York, as sellers, for account of the E. R. Sherburne Company, Boston, as buyers, of about twenty-three thousand (23,000) long tons (of 2,240 pounds each) pile, pure, white granulated sugar, polarizing 99° plus and equal in quality to United States standard granulated sugar.
“At a price of three hundred thirty-two dollars ($332) per long ton of 2,240 pounds, free on board, Buenos Aires.
“Sugar to be shipped in vessels to be provided by buyers, and sellers to have sugars ready for delivery at steamer’s call at Buenos Aires during April and May, 1920, and June, 1920.
“Sugars to be invoiced on net shipping weights.
“Payment: Buyers are to open by cable a confirmed, irrevocable credit in favor of Messrs. Moss & Company, Buenos Aires, to be availed of by sight against delivery of complete set of shipping documents, including certificate of analysis and Argentine export license, not including prepaid freight.
“Buyers are to receive a guaranty of shipment at the point of embarkation and of performance of this contract by the seller, which guaranty is to be acceptable to buyer’s bank and against satisfactory evidence of analysis as to the quality of the sugar by the American Chamber of Commerce of Buenos Aires and export license of the Argentine government.
“Marine insurance from shore to shore, including craft risk, loading and discharging to be for buyer’s account.
“Sellers to notify buyers by cable immediately the vessels designated to take the sugar arrive at loading port for purposes of insurance.
“Yours very truly,
“Minford, Lueder & Co., Buyers. “Sellers: J. Moss & Cie,
“By Aboab Herms.
“J. J. Bela.
“Accepted: E. R. Sherburne Co.
“E. R. Sherburne, Brokers.”
This case came on for trial in the District Court before a jury, which made special findings in favor of the plaintiffs in answer to questions submitted by the court, and also, on March 10, 1922, by its direction, returned the following alternative verdict:
“The jury find for the plaintiffs and assess damages in the sum of one million three hundred sixty-one thousand seven hundred six and 14/ioo dollars.
“But if, as a matter of law, the plaintiffs are not entitled to a verdict, then the jury find for the defendants and consent that this verdict may be entered on order of the United States District Court for the District of Massachusetts, or of the United States Circuit Court of Appeals for the First Circuit or of the Supreme Court of the United States, with same effect as if returned by them.”
On March 11, 1922, Moss filed a motion for a new trial, and also to set aside the verdict for the plaintiffs, and to enter one for the defendants.
The judge of the District Court, on August 22, 1922, set aside the verdict for the plaintiffs and entered a verdict for the defendants, upon the ground that the plaintiffs had failed to establish either authority of Aboab Hermanos to act as the agent of the defendants or the ratification of the contract by them.
Upon a writ of error by plaintiffs this court held that the jury was warranted in finding that the contract was either authorized or ratified, and an order was entered vacating the judgment of the District Court, setting aside the verdict for the defendants, and remanding the ease to the District Court for further proceedings not inconsistent with the opinion rendered. See Sherburne v. Moss, 295 F. 769.
After receipt of the mandate of this court the District Court, on July 22, 1924, ordered the verdict for Moss to be set aside, and judgment entered for Sherburne on the verdict of the jury.
The case has now been brought here by Moss upon a writ of error. We are met at the outset by a motion of Sherburne to strike the bill of exceptions from the record, on the ground that it was not filed within the time allowed by law or the .rules of the District Court.
When, on July 22, 1924, judgment was entered for Sherburne on the verdict of the jury, the motion of Moss for a new trial was then pending. By order of the District Court the time for filing a bill of exceptions by Moss was extended to November 1,1924, and this bill of exceptions was filed October 27, 1924.
The motion for a new trial which had been filed by Moss was not disposed of until judgment upon the verdict was entered for Sherburne; and as, under rule 19 of the District Court, which provides that a bill of exceptions must be filed within 20 days after the verdict or the denial -of a motion for a new trial, “unless the court or judge shall otherwise order,” and the time for filing the same had- been properly extended to November 1, 1924, the bill of exceptions in this ease was seasonably filed. Slip Scarf Co. v. William Filene’s Sons’ Co. (C. C. A.) 289 F. 641.
When the case was formerly before this court upon Sherburne’s exceptions, we held that the only questions presented were whether there was any evidence from which the jury might reasonably find that Moss either authorized or ratified the contract of April 14th, and only the evidence pertaining to the questions of authorization and ratification was before us.
The following positions are now taken by Moss as grounds for reversal:
First. That, by making a contract on April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract of April 14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that, as a matter of law, such was the case.
Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to he introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages.
The contract of April 14, 1920, was canceled on or about April 17, 1920, by a cable from Aboab of Buenos Aires to Aboab in New York, on the ground that credit had not arrived on April 16th. On April 26, 1920, another contract was made between the same parties for the purchase of 20,500 tons of what the parties have stipulated was a part of the sugar included in the former contract, at the price of $410 per long ton of 2,240 pounds, e. i. f. New York, and with the provisions that the export duty, if any, was to be for buyer’s account, and that, if the export license was not granted before the 10th of May following, the contract should be null and void. No export license was obtained, and' no sugar was shipped under this contract.
At the close of the evidence Moss made the following requests for rulings:
“A subsequent contract covering the same subject-matter and made by the same parties as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, supersedes, and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject.
“If and when the parties to the contract of April 14, 1920, entered into a new contract (that of April 26, 1920), covering the the same subject-matter, the new contract necessarily superseded, -abrogated, and took the place of the first as a matter of law, and became the measure of the obligations of both parties.”
The court declined to give these instructions, but gave the following:
“On the 26th another arrangement was made, or a contract even, between Moss & Co. and the Sherburne Company, with reference to 20,500 tons. The defendant says that the contract related to the remainder of the same sugar that had formed the subjeet-matter of the 23,000-ton contract of two weeks previous, and that, when the parties made that contract — the same parties — it was understood that all rights under the contract of April 14th were waived and abandoned by the plaintiff or by the Sherburne Company. The plaintiffs and the Sherburne Company say that was not so at all; that nothing was said about their giving up their rights under the April 14th contract; that their attitude was they were insisting upon those rights, and made this purchase of sugar as a purely independent transaction. Well, you are to decide which the understanding of the agreement was. To put it exactly: Are you satisfied by a fair preponderance of the testimony, at the time when Sherburne & Co. and Moss & Co. entered into the contract of April 26th, it was understood and agreed between those parties that the Sherburne Company relinquished and abandoned and waived any and all rights which it had under the contract of April 14th? Are you satisfied that is so? If you are, you will answer that question ‘Yes.’ If you are not satisfied, you will answer it ‘No.’ ”
The jury, by a special finding, answered the question in the negative.
If it had been shown hy uneontradicted testimony that Sherburne knew at the time of the second contract that its subjeet-matter was the same lot of sugar as that covered by the first, and the circumstances were such that no other conclusion could be drawn than that a cancellation or waiver of rights under the first contract was intended, the requested instruction would have been proper. But the testimony on the part of Moss and Sherburne as to whether the latter was told that it was the same lot of sugar was conflicting, and, as there was nothing to distinguish the lot of pile sugar embraced in the second contract from any other lot, it was for the jury to say whether Sherburne had waived any of his company’s rights under the first contract.
The jury have passed upon this by their special finding under the instructions that were given, and which, although in some respects inadequate, placed the issue of waiver squarely before them. We cannot hold as a matter of law that these instructions, under the conflicting testimony which was given, were not right, or that there was error in refusing to give the requested instructions.
Over the objection of Moss testimony was introduced as to the market value in New York of white granulated sugar during the months of April and May, 1920. It is evident, however, that Moss was not prejudiced by this, because the jury, in arriving at their verdict, did not consider it.
The well-understood rule for the assessment of damages for breach of a contract for the sale of goods, in both federal and state courts, is that, if the contract is broken by the seller, the buyer may recover as damages the difference between the contract price and the market value of the goods at the time of the breach and at the place of delivery, or, if there is no market value at such place, then at the nearest available market.
In this case, under objection of the defendant, to which exception has been taken, the jury were allowed to take into consideration as evidence of the market value of Argentine pile sugar at Buenos Aires at the time of the breach of the contract the price of the same fixed in the second contract, which was $410 per long ton of 2,240 pounds or 18.30 cents per pound e. i. f. New York. The price of sugar per pound under the first contract was 14.82 cents per pound f. o. b. Buenos Aires. To this amount was added the cost of freight, handling, and the import duty into the United States, making in all the sum of 17.43 cents per pound for this sugar unloaded in New York. By adding to 18.30 cents, the cost per pound under the second contract e. i. f. New York, the import duty of 1.36 cents per pound and the cost of handling, .25 cents per pound, the price of 19.91 cents per pound was obtained as the cost of this sugar in New York. The cost of insurance, which, according to the testimony, was 3 cents per 100 pounds, was not added to the contract price in either ease.
The amount thus obtained for the cost of sugar in New York under the first contract, deducted from the price under the second contract, left a difference of 2.48 cents per pound, which it is evident was the basis upon which damages were calculated by the jury. It was not, however, according to the undisputed evidence, the difference between the prices under the two contracts. The import duty may be discarded in the consideration of prices under them, as in each it was to be paid by the buyer.
If to the price under the first contract, 14.82 cents f. o. b. Buenos'Aires, freight, 1 cent per pound, and insurance, 3/ioo cents per pound, are added, the price, New York, would be 15.85 cents per pound, and this, deducted from 18.30 cents per pound, the price under the second contract, which includes freight' and insurance, but not handling, would leave a difference of 2.45 cents per pound. The same result would be arrived at by deducting from 18.30 cents per pound, the price e. i. f. New York under the second contract, freight and insurance, making the cost f. o. b. Buenos Aires 17.27 cents per pound, or 2.45 cents per pound more than the price under the first contract. As 23,000 long tons are 51,520,000 pounds, this error would reduce the verdict by $15,436.
There was no error in admitting the price in the second contract as evidence of the market value of the sugar described under the first contract at Buenos Aires on the date of the breach of the contract, but there was clearly a clerical error in the computation of damages. To avoid the expense of a new trial, this may be corrected by a remittitur. Hansen v. Boyd, 16 S. Ct. 571,161 U. S. 397, 411, 40 L. Ed. 746; Van Boskerck v. Torbert, 184 F. 419, 422, 107 C. C. A. 383, Ann. Cas. 1916E, 171; Straus et al. v. Victor Talking Machine Co. et al. (C. C. A.) 297 F. 791, 807.
Ordered, if the defendants in error, within 15 days after this opinion is handed down, file a remittitur of $15,436, with interest for 400 days, the time for which interest was allowed by the jury, in the office of the clerk of the District Court, and a certified copy in the office of the clerk of this court, the judgment, less the amount so remitted, will be affirmed, with costs in this court to the plaintiffs in error. If this is not done, the verdict will be vacated, judgment reversed, and a new trial granted, with costs to the plaintiffs in error.
On Petition for Rehearing.
The plaintiffs in error have petitioned for a rehearing since our opinion was handed down in this case.
In addition to the defenses relied upon at the trial of this action, and which were argued before us, the petitioner now contends that the contract of April 14,1920, was a conditional one; that under it Moss did not guarantee that an export license could be obtained from the Argentine government; and that the contract, if one were made, was conditioned upon his being able to obtain this.
The case has been before this court twice, and neither time was this position taken by Moss. The only defenses relied upon the second time the ease was argued- before us were:
First. That by making the contract of April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract.of April'14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that such was the ease.
Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to be introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages.
’In our opinion we discussed these defenses, and find nothing in the petition which causes us to reach a different conclusion from that which we then reached.
The petition is denied.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. Larry W. MASTERS, Appellant.
No. 79-5141.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1980.
Decided May 22, 1980.
Douglas F. Patrick, Greenville, S. C. (Eugene C. Covington, Jr., Foster, Covington & Patrick, Greenville, S. C., on brief), for appellant.
William A. Coates, Asst. U. S. Atty., Greenville, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before RUSSELL and WIDENER, Circuit Judges, and ROBERT J. STAKER, United States District Judge for the Southern District of West Virginia, sitting by designation.
DONALD RUSSELL, Circuit Judge:
The defendant has appealed his conviction for “dealing in firearms or ammunition” without securing a valid license to do so in violation of § 922(a)(1) and § 924(a), 18 U.S.C. He has raised two grounds of alleged error. Both relate to the introduction of evidence. We find neither meritorious and affirm.
The first claim of error is directed at the refusal of the district judge to suppress certain statements in three taped conversations of the defendant with separate undercover agents, which were admitted in evidence at trial. The challenged portions of the conversations covered negotiations or discussions between the undercover agents and the defendant with reference to the purchase of firearms from the defendant. In some of these discussions the defendant was volubly expansive about the scope of his dealings in firearms. He engaged in a certain amount of “puffing” about his ability to supply to a customer practically any type of weapon, such as new or old pistols, sawed-off shotguns, hand grenades, etc. He explained that his supply of guns was so large that he couldn’t “keep it all in one place, cause somebody liable hit me” and suggested that he could meet any requirement for guns, “I just have to know what you want, so I can pull ’em out.” He boasted that he had sold a machine gun the week before. He went on to suggest that he could supply cassettes and other musical items. In one of the taped conversations he was more coy. In this latter conversation he pictured himself as a gun collector who had become embroiled in the toils of the law and was then on probation. He had inquired of his probation officer what he should do with his gun collection and had been advised to get rid of it. He did not, however, want to sell the guns himself and so he gave them nominally to his wife. He emphasized that, while he was physically making the sale, his wife was the real seller of the guns.
What defendant by his motion apparently wished to suppress in the taped conversations was any reference to his supply of guns, other sales of weapons, his identification of his status as a probationer, and any references to musical instruments. In essence, what he wished to do was seemingly to eliminate all the discussions between the parties leading up to a purchase and sale of a firearm and to confine the parts of the taped conversations admitted to the simple purchase and sale itself. The district court refused to strike from the statements the challenged statements, finding it impossible to do so without impairing the intelligibility of the conversations themselves. The district court did offer to give cautionary instructions but this offer was refused by the defendant, who elected to stand on his motion.
The basis for the defendant’s motion to suppress is that the statements objected to represented evidence of “other crimes, wrongs or acts” which improperly suggested a propensity to crime on the defendant’s part. He contends that the introduction into the record of such statements violated specifically Rule 404(b), Federal Rules of Evidence. We do not find the argument persuasive.
The Federal Rule, both prior to and as stated in Rule 404(b), Federal Rules of Evidence — characterized as the “inclusive rule,” — “admits all evidence of other crimes [or acts] relevant to an issue in a trial except that which tends to prove only criminal disposition.” This was the view taken of the Rule by us in United States v. Woods, (4th Cir. 1973) 484 F.2d 127, 134, cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974). Manifestly the Rule, even though correctly described as “inclusionary,” does not permit the automatic admission of any evidence of other “crimes, wrongs or acts.” The evidence of other crimes must be relevant for a purpose other than showing the character or disposition of the defendant. United States v. Benedetto, (2d Cir. 1978) 571 F.2d 1246, 1248; United States v. Calvert, (8th Cir. 1975) 523 F.2d 895, 906, cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976). The circumstances under which such evidence may be found relevant and admissible under the Rule have been described as “infinite.” Some of such circumstances are set forth in the Rule itself, but the cataloguing therein is merely illustrative and not exclusionary. United States v. Woods, 484 F.2d at 134. One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence “furnishes part of the context of the crime” or is necessary to a “full presentation” of the case, or is so intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its “environment” that its proof is appropriate in order “to complete the story of the crime on trial by proving its immediate context or the ‘res gestae’ ” or the “uncharged offense is ‘so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other . . . ’ [and is thus] part of the res gestae of the crime charged.” And where evidence is admissible to provide this “full presentation” of the offense, “[t]here is no reason to fragmentize the event under inquiry” by suppressing parts of the “res gestae.” As the Court said in United States v. Roberts, (6th Cir. 1977) 548 F.2d 665, 667, cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232 “[t]he jury is entitled to know the ‘setting’ of a case. It cannot be expected to make its decision in a void — without knowledge of the time, place and circumstances of the acts which form the basis of the charge.”
Illustrative of this basis for the admissibility of evidence of other crimes are United States v. Bloom, (5th Cir. 1976) 538 F.2d 704, cert. denied, 429 U.S. 1074, 97 S.Ct. 814, 50 L.Ed.2d 792 (1977), and United States v. Bailey, (3d Cir. 1971) 451 F.2d 181. In Bloom the defendant was charged with the sale to an undercover agent of heroin but not with a sale of marijuana or cocaine. In the course of negotiations leading up to the purchase by the undercover agent from the defendant of heroin there was some discussion of the possible purchase of marijuana and cocaine. The defendant sought, as has the defendant in this case, to exclude from the evidence the preliminary discussion relating to the possible purchase of marijuana and cocaine. In rebuffing such claim the court said:
“The evidence in question [of discussions relating to possible sales of marijuana and cocaine] served merely to complete the agents’ accounts of their dealings with Bloom, and was not introduced primarily to establish propensity to commit the crimes charged. Arguably, then, it is not the kind of evidence to which the general rule excluding evidence of other offenses applies.” p. 707.
In Bailey the defendant was charged with the crime of selling narcotic drugs. In describing his dealing with the defendant, the undercover agent, after detailing the purchase of narcotic drugs, testified to a transaction where the defendant had sold him a balloon said to contain cocaine but which actually was empty. The defendant contended that “absent a cautionary instruction, the admission into evidence of Duncan’s [the undercover agent’s] testimony concerning the sale of the empty balloon on December 8 was proof of an uncharged crime and, therefore, constituted reversible error.” In dismissing the claim the court said:
“A review of Duncan’s testimony indicates that during this particular transaction Bailey made arrangements with Duncan to deliver the heroin which was sold later on December 8. Thus, even if the fraudulent sale involved uncharged criminal activity, testimony as to its occurrence was admissible as part of the res gestae.” p. 183.
It is obvious that under the principles established in these cases, both of which are analogous to the circumstances of this case, it was within the discretion of the district court to admit the evidence of other crimes and acts as were detailed by the defendant in the negotiations between the undercover agents and himself which eventuated in the commission of the crime charged. It served to “complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” The district court concluded, also in the exercise of its discretion, that such evidence could not be “fragmentized” without distorting or impairing the Government’s proof of the crime. Of course, in exercising its discretion to admit or not to admit the evidence, the district court was required to consider whether the probative value of this evidence was substantially outweighed by its unfair prejudice. United States v. Calvert, 523 F.2d 906; United States v. Smith, 446 F.2d 203-04. It has been said that such “undue prejudice would seem to require exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” Such prejudice, if any, can be generally obviated by a cautionary or limiting instruction, particularly if the danger of prejudice is slight in view of the overwhelming evidence of guilt. But the critical question of whether the probative value of the testimony is disproportionately prejudicial to the defendant and, if so, whether it can be adequately moderated by cautionary instructions is one committed to the discretion of the district court and its discretion will only be disturbed if it has acted “arbitrarily or irrationally.” United States v. Robinson, (2d Cir. 1977) 560 F.2d 507, 515, cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). The district court in this case offered to eliminate any reasonable possibility of prejudice in the admission of the evidence by giving a cautionary instruction. The defendant refused the proffer. Under all the circumstances, including the offer of the district court to give a limiting instruction, it was within the district court’s discretion to refuse to suppress the challenged testimony relating to all discussions of other sales of firearms by the defendant, his possession of a supply of such firearms and the reasons for his representation of his wife as the seller of the firearms and, in so exercising its discretion, it did not commit clear error.
There is, as we have said, a second and equally sound ground for the admission of this evidence. The charge against the defendant was that he had engaged in the business of dealing in firearms without a license in violation of the Gun Control Act of 1968. To make out the crime under the statute it was incumbent upon the Government to prove the status of the defendant as a “dealer” in firearms. In order to satisfy this burden the Government need not prove that the defendant’s primary business was dealing in firearms or that he necessarily made a profit from such dealing; “it must [however] show a willingness [on the defendant’s part] to deal, a profit motive, and a greater degree of activity than occasional sales by a hobbyist.” United States v. Huffman, (4th Cir. 1975) 518 F.2d 80, 81, cert. denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92; United States v. Tarr, (1st Cir. 1978) 589 F.2d 55, 59. The Government may do this by showing that the defendant “ha[d] guns on hand or [was] ready and able to procure them and sell them to such persons as might accept them as customers.” United States v. Wilkening, (8th Cir. 1973) 485 F.2d 234, 235; to the same effect, United States v. Shirling, (5th Cir. 1978) 572 F.2d 532, 534; United States v. Swinton, (10th Cir. 1975) 521 F.2d 1255, 1259, cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); United States v. Jackson, (S.D.Ohio 1972) 352 F.Supp. 672, 674, aff’d. without opinion, 480 F.2d 927 (6th Cir.). The bulk of the conversations between the defendant and the undercover agents was thus relevant in establishing the defendant’s status as a dealer by showing that the defendant had a supply of guns of all types including sawed-off shotguns, machine guns and grenades, which he had sold to other customers and which he was willing then to sell to the undercover agents.
The judgment of conviction is accordingly
AFFIRMED.
. This defense of the defendant is similar to the one asserted by the defendant in answer to a like charge of dealing in guns without a license in United States v. Zeidman, (7th Cir. 1971) 444 F.2d 1051, 1054.
. See Weinstein & Berger’s Evidence, § 404[08] at 404-41 and 404-42 (1979):
“Subdivision (b) of Rule 404 follows previous federal practice in adopting a so-called ‘inclusionary’ rule which admits all evidence of other crimes relevant to an issue in a trial, except that which tends to prove only criminal disposition.”
In adopting such a Rule the drafters followed substantially Rule 311 of the ALI Model Code of Evidence (1948):
“Subject to Rule 306, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible as tending to prove that he committed a crime or civil wrong on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime or civil wrong or to commit crimes or civil wrongs generally.”
That Rule 404(b) is a restatement of existing federal practice, see United States v. Hajal, (6th Cir. 1977) 555 F.2d 558, 568, cert. denied, 434 U.S. 849, 98 S.Ct. 159, 54 L.Ed.2d 117, and United States v. Rocha, (9th Cir. 1977) 553 F.2d 615, 616. In United States v. Beechum, (5th Cir. en banc 1978) 582 F.2d 898, 910-11, n. 13, the court suggests that the Rule, as adopted by Congress, broadened the trial court’s discretion to admit evidence of other crimes beyond that permitted under the Supreme Court’s version.
For cases in this Circuit permitting the introduction of evidence of other crimes prior to the adoption of the Federal Rules of Evidence, see, for instance, United States v. Smith, (4th Cir. 1971) 446 F.2d 200, 204; United States v. Weems, (4th Cir. 1968) 398 F.2d 274, 275, cert. denied 393 U.S. 1099, 89 S.Ct. 894, 21 L.Ed.2d 790 (1969); United States v. Copeland, (4th Cir. 1961) 295 F.2d 635, 637, cert. denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962); Swann v. United States, (4th Cir. 1952) 195 F.2d 689, 690-91; Lovely v. United States, (4th Cir. 1948) 169 F.2d 386, 388-89, cert. denied, 338 U.S. 834, 70 S.Ct. 38, 94 L.Ed. 508 (1949); cf. United States v. Jamar, (4th Cir. 1977) 561 F.2d 1103, 1106.
. For a discussion of various circumstances which may render the evidence of other crimes admissible, see United States v. Beechum, 582 F.2d at 911-12, n. 15.
. United States v. Smith, 446 F.2d at 204.
. United States v. Weems, 398 F.2d at 275.
. State v. Spears, (1978) 58 Ohio App.2d 11, 387 N.E.2d 648, 651.
. United States v. Howard, (8th Cir. 1974) 504 F.2d 1281, 1284.
. United States v. Beechum, 582 F.2d 898, 912, n. 15.
The use of the term “res gestae” in this connection has been criticized in 22 Wright and Graham, Federal Practice and Procedure, § 5239 at pp. 449-50, but it has been widely used in the decisions. It was so used in United States v. Copeland, 295 F.2d at 637.
. United States v. Weems, 398 F.2d at 275; United States v. Copeland, 295 F.2d at 637; United States v. Gano, (10th Cir. 1977) 560 F.2d 990, 993-94.
. McCormick, Evidence, Cleary ed. 1972, § 190, p. 448.
. Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 410 (1951-52).
. See Rule 403, Federal Rules of Evidence.
. Normally the district court should add a cautionary or limiting instruction if it admits evidence. United States v. Calvert, 523 F.2d at 907. There is, however, no need for cautionary instructions in a case such as this, where the evidence of other illegal firearm sales is provable as an independent fact to establish the dealership status of the defendant, a point later discussed herein.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
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.
WARDEN, MARYLAND PENITENTIARY v. HAYDEN.
No. 480.
Argued April 12, 1967.
Decided May 29, 1967.
Franklin Goldstein, Assistant Attorney General of Maryland, argued the cause for petitioner. With him on the brief was Francis B. Burch, Attorney General.
Albert R. Turnbull, by appointment of the Court, 385 U. S. 985, argued the cause and filed a brief for respondent, pro hac vice, by special leave of Court.
Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin and Beatrice Rosenberg.
Mr. Justice Brennan
delivered the opinion of the Court.
We review in this case the validity of the proposition that there is under the Fourth Amendment a “distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.”
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his clothing, a cap, jacket,- and trousers, among other things, were seized during a search of his home, and were admitted in evidence without objection. After unsuccessful state court proceedings, he sought and was denied federal habeas corpus relief in the District Court for Maryland. A divided panel of the Court of Appeals for the Fourth Circuit reversed. 363 F. 2d 647. The Court of Appeals believed that Harris v. United States, 331 U. S. 145, 154, sustained the validity of the search, but held that respondent was correct in his contention that the clothing seized was improperly admitted in evidence because the items had “evidential value only” and therefore were not lawfully subject to seizure. We granted certiorari. 385 U. S. 926. We reverse.
I.
About 8 a. m. on March 17, 1962, an armed robber entered the business premises of the Diamond Cab Company in Baltimore, Maryland. He took some $363 and ran. Two cab drivers in the vicinity, attracted by shouts of “Holdup,” followed the man to 2111 Cocoa Lane. One driver notified the company dispatcher by radio that the man was a Negro about 5'8" tall, wearing a light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher relayed the information to police who were proceeding to the scene of the robbery. Within minutes, police arrived at the house in a number of patrol cars. An officer knocked and announced their presence. Mrs. Hayden answered, and the officers told her they believed that a robber had entered the house, and asked to search the house. She offered no objection.
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, “was searching the cellar for a man or the money” found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden’s bed, and ammunition for the shotgun was found in a bureau drawer in Hayden’s room. All these items of evidence were introduced against respondent at his trial.
II.
We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U. S. 451, 456. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
We do not rely upon Harris v. United States, supra, in sustaining the validity of the search. The principal issue in Harris was whether the search there could properly be regarded as incident to the lawful arrest, since Harris was in custody before the search was made and the evidence seized. Here, the seizures occurred prior to or immediately contemporaneous with Hayden’s arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.
It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some weapons had been found at the time he opened the machine. In these circumstances the inference that he was in fact also looking for weapons is fully justified.
III.
We come, then, to the question whether, even though the search was lawful, the Court of Appeals was correct in holding that the seizure and introduction of the items of clothing violated the Fourth Amendment because they are “mere evidence.” The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts and commentators. The Court of Appeals, however, felt “obligated to adhere to it.” 363 F. 2d, at 655. We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.
We have examined on many occasions the history and purposes of the Amendment. It was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of “the sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U. S. 616, 630, from searches under indiscriminate, general authority. Protection of these interests was assured by prohibiting all “unreasonable” searches and seizures, and by requiring the use of warrants, which particularly describe “the place to be searched, and the persons or things to be seized,” thereby interposing “a magistrate between the citizen and the police,” McDonald v. United States, supra, 335 U. S., at 455.
Nothing in the language of the Fourth Amendment supports the distinction between “mere evidence” and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” without regard to the use to which any of these things are applied. This “right of the people” is certainly unrelated to the “mere evidence” limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same “papers and effects” may be “mere evidence” in one case and “instrumentality” in another. See Comment, 20 U. Chi. L. Rev. 319, 320-322 (1953).
In Gouled v. United States, 255 U. S. 298, 309, the Court said that search warrants “may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding . . . .” The Court derived from Boyd v. United States, supra, the proposition that warrants “may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken,” 255 U. S., at 309; that is, when the property is an instrumentality or fruit of crime, or contraband. Since it was “impossible to say, on the record . . . that the Government had any interest” in the papers involved “other than as evidence against the accused . . . ,” “to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself.” Id., at 311.
The items of clothing involved in this case are not “testimonial” or “communicative” in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. Schmerber v. California, 384 U. S. 757. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.
The Fourth Amendment ruling in Gouled was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals. The common law of search and seizure after Entick v. Carrington, 19 How. St. Tr. 1029, reflected Lord Camden’s view, derived no doubt from the political thought of his time, that the “great end, for which men entered into society, was to secure their property.” Id., at 1066. Warrants were “allowed only where the primary right to such a search and seizure is in the interest which the public or complainant may have in the property seized.” Lasson, The History and Development of the Fourth Amendment to the United States Constitution 133-134. Thus stolen property — the fruits of crime — was always subject to seizure. And the power to search for stolen property was gradually extended to cover “any property which the private citizen was not permitted to possess,” which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif. L. Rev. 474, 475. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized. As Lord Camden pointed out in Entick v. Carrington, supra, at 1066, a general warrant enabled “the party’s own property [to be] seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is cleared by acquittal.”
The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be “unreasonable” within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. See Jones v. United States, 362 U. S. 257, 266; Silverman v. United States, 365 U. S. 505, 511. This shift in emphasis from property to privacy has come about through a subtle interplay of substantive and procedural reform. The remedial structure at the time even of Weeks v. United States, 232 U. S. 383, was arguably explainable in property terms. The Court held in Weeks that a defendant could petition before trial for the return of his illegally seized property, a proposition not necessarily inconsistent with Adams v. New York, 192 U. S. 585, which held in effect that the property issues involved in search and seizure are collateral to a criminal proceeding. The remedial structure finally escaped the bounds of common law property limitations in Silverthorne Lumber Co. v. United States, 251 U. S. 385, and Gouled v. United States, supra, when it became established that suppression might be sought during a criminal trial, and under circumstances which would not sustain an action in trespass or replevin. Recognition that the role of the Fourth Amendment was to protect against invasions of privacy demanded a remedy to condemn the seizure in Silverthorne, although no possible common law claim existed for the return of the copies made by the Government of the papers it had seized. The remedy of suppression, necessarily involving only the limited, functional consequence of excluding the evidence from trial, satisfied that demand.
The development of search and seizure law since Silver-thorne and Gouled is replete with examples of the transformation in substantive law brought about through the interaction of the felt need to protect privacy from unreasonable invasions and the flexibility in rulemaking made possible by the remedy of exclusion. We have held, for example, that intangible as well as tangible evidence may be suppressed, Wong Sun v. United States, 371 U. S. 471, 485-486, and that an actual trespass under local property law is unnecessary to support a remediable violation of the Fourth Amendment, Silverman v. United States, supra. In determining whether someone is a “person aggrieved by an unlawful search and seizure” we have refused “to import into the law . . . subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.” Jones v. United States, supra, 362 U. S., at 266. And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity: stolen goods, Henry v. United States, 361 U. S. 98; instrumentalities, Beck v. Ohio, 379 U. S. 89; McDonald v. United States, supra; and contraband, Trupiano v. United States, 334 U. S. 699; Aguilar v. Texas, 378 U. S. 108.
The premise in Gouled that government may not seize evidence simply for the purpose of proving crime has likewise been discredited. The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction, obscuring the reality that government has an interest in solving crime. Schmerber settled the proposition that it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for “mere evidence” or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U. S. 346. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.
The remedy of suppression, moreover, which made possible protection of privacy from unreasonable searches without regard to proof of a superior property interest, likewise provides the procedural device necessary for allowing otherwise permissible searches and seizures conducted solely to obtain evidence of crime. For just as the suppression of evidence does not entail a declaration of superior property interest in the person aggrieved, thereby enabling him to suppress evidence unlawfully seized despite his inability to demonstrate such an interest (as with fruits, instrumentalities, contraband), the refusal to suppress evidence carries no declaration of superior property interest in the State, and should thereby enable the State to introduce evidence lawfully seized despite its inability to demonstrate such an interest. And, unlike the situation at common law, the owner of property would not be rendered remediless if “mere evidence” could lawfully be seized to prove crime. For just as the suppression of evidence does not in itself necessarily entitle the aggrieved person to its return (as, for example, contraband), the introduction of “mere evidence” does not in itself entitle the State to its retention. Where public officials “unlawfully seize or hold a citizen’s realty or chattels, recoverable by appropriate action at law or in equity . . . ,” the true owner may “bring his possessory action to reclaim that which is wrongfully withheld.” Land v. Dollar, 330 U. S. 731, 738. (Emphasis added.) See Burdeau v. McDowell, 256 U. S. 465, 474.
The survival of the Gouled distinction is attributable more to chance than considered judgment. Legislation has helped perpetuate it. Thus, Congress has never authorized the issuance of search warrants for the seizure of mere evidence of crime. See Davis v. United States, 328 U. S. 582, 606 (dissenting opinion of Mr. Justice Frankfurter). Even in the Espionage Act of 1917, where Congress for the first time granted general authority for the issuance of search warrants, the authority was limited to fruits of crime, instrumentalities, and certain contraband. 40 Stat. 228. Gouled concluded, needlessly it appears, that the Constitution virtually limited searches and seizures to these categories. After Gouled, pressure to test this conclusion was slow to mount. Rule 41 (b) of the Federal Rules of Criminal Procedure incorporated the Gouled categories as limitations on federal authorities to issue warrants, and Mapp v. Ohio, 367 U. S. 643, only recently made the “mere evidence” rule a problem in the state courts. Pressure against the rule in the federal courts has taken the form rather of broadening the categories of evidence subject to seizure, thereby creating considerable confusion in the law. See, e. g., Note, 54 Geo. L. J. 593, 607-621 (1966).
The rationale most frequently suggested for the rule preventing the seizure of evidence is that “limitations upon the fruit to be gathered tend to limit the quest itself.” United States v. Poller, 43 F. 2d 911, 914 (C. A. 2d Cir. 1930). But privacy “would be just as well served by a restriction on search to the even-numbered days of the month. . . . And it would have the extra advantage of avoiding hair-splitting questions . . . .” Kaplan, op. cit. supra, at 479. The “mere evidence” limitation has spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection. But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of “a neutral and detached magistrate . . . .” Johnson v. United States, 333 U. S. 10, 14. The Fourth Amendment allows intrusions upon privacy-under these circumstances, and there is no viable reason to distinguish intrusions to secure “mere evidence” from intrusions to secure fruits, instrumentalities, or contraband.
The judgment of the Court of Appeals is
Reversed.
Mr. Justice Black concurs in the result.
Harris v. United States, 331 U. S. 145, 154; see also Gouled v. United States, 255 U. S. 298; United States v. Lefkowitz, 285 U. S. 452, 465-466; United States v. Rabinowitz, 339 U. S. 56, 64, n. 6; Abel v. United States, 362 U. S. 217, 234-235.
Hayden did not appeal from his conviction. He first sought relief by an application under the Maryland Post Conviction Procedure Act which was denied without hearing. The Maryland Court of Appeals reversed and remanded for a hearing. 233 Md. 613, 195 A. 2d 692. The trial court denied relief after hearing, concluding “that the search of his home and the seizure of the articles in question were proper.” His application for federal habeas corpus relief resulted, after hearing in the District Court, in the same conclusion.
The State claims that, since Hayden failed to raise the search and seizure question at trial, he deliberately bypassed state remedies and should be denied an opportunity to assert his claim in federal court. See Henry v. Mississippi, 379 U. S. 443; Fay v. Noia, 372 U. S. 391. Whether or not the Maryland Court of Appeals actually intended, when it reversed the state trial court’s denial of post-conviction relief, that Hayden be afforded a hearing on the merits of his claim, it is clear that the trial court so understood the order of the Court of Appeals. A hearing was held in the state courts, and the claim denied on the merits. In this circumstance, the Fourth Circuit was correct in rejecting the State’s deliberate-bypassing claim. The deliberate-bypass rule is applicable only “to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Fay v. Noia, supra, 372 U. S., at 438. (Emphasis added.) But see Nelson v. California, 346 F. 2d 73, 82 (C. A. 9th Cir. 1965).
The state postconviction court found that Mrs. Hayden “gave the policeman permission to enter the home.” The federal habeas corpus court stated it “would be justified in accepting the findings of historical fact made by Judge Sodaro on that issue but concluded that resolution of the issue would be unnecessary, because the officers were “justified in entering and searching the house for the felon, for his weapons and for the fruits of the robbery.”
The officer was asked in the District Court whether he found the money. He answered that he did not, and stated: “By the time I had gotten down into the basement I heard someone say upstairs, 'There’s a man up here.’ ” He was asked: “What did you do then?” and answered: “By this time I had already discovered some clothing which fit the description of the clothing worn by the subject that we were looking for . . . .” It is clear from the record and from the findings that the weapons were found after or at the same time the police found Hayden.
People v. Thayer, 63 Cal. 2d 635, 408 P. 2d 108, cert. denied, 384 U. S. 908; State v. Bisaccia, 45 N. J. 504, 213 A. 2d 185. Compare United States v. Poller, 43 F. 2d 911, 914 (C. A. 2d Cir. 1930).
E. g., Chafee, The Progress of the Law, 1919-1922, 35 Harv. L. Rev. 673 (1922); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor’s View, 44 Minn. L. Rev. 891, 914-918 (1960); Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif. L. Rev. 474, 478 (1961); Comment, 45 N. C. L. Rev. 512 (1967); Comment, 66 Col. L. Rev. 355 (1966); Comment, 20 U. Chi. L. Rev. 319 (1953); Comment, 31 Yale L. J. 518 (1922). Compare, e. g., Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361 (1921); Note, 54 Geo. L. J. 593 (1966).
This Court has approved the seizure and introduction of items having only evidential value without, however, considering the validity of the distinction rejected today. See Schmerber v. California, 384 U. S. 757; Cooper v. California, 386 U. S. 58.
E. g., Stanford v. Texas, 379 U. S. 476, 481-485; Marcus v. Search Warrant, 367 U. S. 717, 724-729; Frank v. Maryland, 359 U. S. 360, 363-365. See generally Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937); Landynski, Search and Seizure and the Supreme Court (1966).
Both Weeks and Adams were written by Justice Day, and joined by several of the same Justices, including Justice Holmes.
At common law the Government did assert a superior property interest when it searched lawfully for stolen property, since the procedure then followed made it necessary that the true owner swear that his goods had been taken. But no such procedure need be followed today; the Government may demonstrate probable cause and lawfully search for stolen property even though the true owner is unknown or unavailable to request and authorize the Government to assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure, not because the Government had some property interest in them (under the ancient, fictitious forfeiture theory), but because they could be used to perpetrate further crime. 255 U. S., at 309. The same holds true, of course, for “mere evidence”; the prevention of crime is served at least as much by allowing the Government to identify and capture the criminal, as it is by allowing the seizure of his instrumentalities. Finally, contraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.
Gouled was decided on certified questions. The only question which referred to the Espionage Act of 1917 stated: “Are papers of . . . evidential value . . . , when taken under search warrants issued pursuant to Act of June 15, 1917, from the house or office of the person so suspected, — seized and taken in violation of the 4th amendment?” Gouled v. United States, No. 250, Oct. Term, 1920, Certificate, p. 4. Thus the form in which the case was certified made it difficult if not impossible “to limit the decision to the sensible proposition of statutory construction, that Congress had not as yet authorized the seizure of purely evidentiary material.” Chafee, op. cit. supra, at 699. The Government assumed the validity of petitioner’s argument that Entick v. Carrington, Boyd v. United States, and other authorities established the constitutional illegality of seizures of private papers for use as evidence. Gouled v. United States, supra, Brief for the United States, p. 50. It argued, complaining of the absence of a record, that the papers introduced in evidence were instrumentalities of crime. The Court ruled that the record before it revealed no government interest in the papers other than as evidence against the accused. 255 U. S., at 311.
Significantly, Entick v. Carrington itself has not been read by the English courts as making unlawful the seizure of all papers for use as evidence. See Dillon v. O’Brien, 20 L. R. Ir. 300; Elias v. Pasmore, [1934] 2 K. B. 164. Although Dillon, decided in 1887, involved instrumentalities, the court did not rely on this fact, but rather on “the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice . . . .” 20 L. R. Ir., at 317.
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_numresp
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SEABOARD SURETY COMPANY, Plaintiff, Appellant, v. DALE CONSTRUCTION CO. et al., Defendants, Appellees (two cases).
Nos. 5028, 5064.
United States Court of Appeals First Circuit.
March 6, 1956.
Rehearing Denied in No. 5064. March 22, 1956.
Stuart Macmillan, Boston, Mass., Samuel F. Clapp, Boston, Mass., on the brief, for appellant.
Edward H. Appelstein, Boston, Mass., for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
The plaintiff-appellant, Seaboard Surety Company, a New York corporation, brought suit in the court below under its diversity jurisdiction against Dale Construction Co., a Massachusetts corporation, and its two principal officers, both citizens of Massachusetts. The suit was for specific performance of two identical contracts of indemnity executed by Dale and its officers individually in consideration of the issuance by Seaboard of two performance and two payment bonds required by the terms of two separate contracts entered into by Dale with the United States for construction work on two government installations in the Boston area. The first contract, entered into on June 27, 1950, was for the replacement of a water main at the Boston Army Base. The second contract, entered into about a year later on June 15, 1951, was for the repair of the fire alarm and police signal systems at the South Boston Annex of the Boston Naval Shipyard. The defendants answered and Dale filed counterclaims to recover damages which it alleged it had sustained by reason of Seaboard’s wrongful assumption and completion of the work called for by the two contracts.
The District Court empanelled an advisory jury to hear the case but at the close of the evidence on January 28, 1955, it discharged the jury, denied the plaintiff’s motion for summary judgment, and, concluding for reasons to be stated presently that it lacked jurisdiction, it orally directed that the plaintiff’s complaint be dismissed and by parity of reasoning that both of the defendant Dale’s counterclaims also be dismissed. The court said in addition that Seaboard’s suit so far as the Naval Shipyard contract was concerned was premature. On January 31, 1955, the court filed findings of fact and conclusions of law embodying in more detail its conclusions expressed orally three days before, and the appellant then seasonably filed motions for a new trial and for amendment of the findings of fact and conclusions of law. These motions were denied on April 29, and on May 4 the court entered judgment dismissing the plaintiff’s complaint but making no mention of Dale’s counterclaims. The plaintiff thereupon promptly moved that the judgment be amended 1) to provide for dismissal of Dale’s counterclaim with respect to the Army Base contract, 2) to make similar disposition of the counterclaim with respect to the Naval Shipyard contract and 3) to provide for the entry of a judgment for the plaintiff in the amount of certain lien claims which it had paid as surety in accordance with the payment bond it had given on the Army Base contract. The District Court by memorandum dated June 1, 1955, allowed this motion in part. It said that the counterclaim “relating to the Army Base contract may be dismissed, as the evidence was insufficient to show that Seaboard maliciously and wrongfully caused the contract breach.” It also dismissed Dale’s counterclaim relating to the Naval Shipyard contract, but did so without prejudice, no doubt because of its belief that the suit was premature insofar as that contract was concerned. It then concluded its memorandum with the statement: “I do not feel that the lien amendment should be allowed at this time. It think that it will be necessary to take evidence to show just what the liens pertained to. This can be done in the fall.” Thereupon the plaintiff on June 30, 1955, filed notice of appeal and its appeal came on for hearing in this court at our November session. In the meantime, however, the parties had agreed that Seaboard had paid and was entitled to recover lien claims under its payment bond issued in connection with the Army Base contract in the amount of $1,123.95, and on October 27 the District Court had handed down a memorandum to that effect.
At the argument on appeal counsel for the appellees orally suggested for the first time that this court lacked appellate jurisdiction. His position was that Seaboard’s appeal should be dismissed as untimely for the reason that its appeal was not taken within 30 days of May 4, 1955, when the judgment was entered dismissing its complaint. And he took the alternative position that Seaboard’s appeal should be dismissed as premature in view of the court’s action on June 1, 1955, postponing decision on Seaboard’s lien claims until evidence could be taken in the fall.
Taken by surprise by this line of argument, we directed counsel for the ap-pellees to file a written motion to dismiss the appeal, and a supporting memorandum, and gave counsel for the appellant an opportunity to file a memorandum in opposition. They complied in due course. But in the meantime on November 7, 1955, counsel for the appellant, in an attempt to clarify the situation, obtained a certificate from the District Court giving a resume of the proceedings and concluding as follows:
“In accordance with the request of the plaintiff under Rule 54(b) I determine that after the disposition of the plaintiff’s motion to amend the Judgment of Dismissal in accordance with my memorandum filed on June 1, 1955, there was no just reason for delay in seeking a review of the issues raised by the complaint relating to the Army Base contract, the supplemental complaint relating to the Navy contract and the two counterclaims of Dale Construction Co. The controversy as to the lien claims arose under a separate payment bond on the Army Base contract and was a wholly separable claim.”
In addition the court on the same day entered a formal judgment dismissing Dale’s counterclaim relating to the Army Base contract with prejudice and its counterclaim relating to the Naval Shipyard contract, again without prejudice, and also another formal judgment for the plaintiff in the stipulated amount of the lien claims ($1,123.95) which it had paid in connection with the Army Base contract, thereby completing final disposition of all claims in issue. Seaboard then as a precautionary measure took a second appeal and that appeal appears on our docket as No. 5064. Then, in this latter appeal, Seaboard moved that the filing of a statement of points, briefs, record appendices, and oral arguments be dispensed with, and that it be considered and disposed of on the papers and arguments of its earlier appeal numbered 5028.
We do not pause to consider the contention of counsel for the appellee that the 30-day period for appeal began to run against Seaboard on May 4, when judgment was entered dismissing its complaint, instead of on June 1 when that judgment was amended on timely motion. The reason for this is that in the absence of compliance with Rule 54 (b) there was no final judgment from which any appeal could be taken until the lien claims on the Army Base contract, decision on which was postponed on June 1 until fall, were finally disposed of by the judgment which was formally entered on November 7, after argument in this court.
The judgment of May 4 as amended on June 1 finally disposed of some of the claims for relief presented in the action, but it did not dispose of all of them. It postponed determination until fall of Seaboard’s claim for reimbursement for lien claims paid by it under the Army Base payment bond. Possibly under original Rule 54(b), Fed.Rules Civ.Proc. 28 U.S.C.A. this claim for reimbursement could be considered a claim arising out of a separate and distinct transaction with the result that the balance of the judgment was presently ap-pealable under the doctrine of Reeves v. Beardall, 1942, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478. But we need not attempt to resolve that question, for Rule 54(b) was amended effective on March 19, 1948, Klapprott v. United States, 1949, 335 U.S. 601, 608, 69 S.Ct. 384, 93 L.Ed. 266, to establish a different test of appealability. The Rule now reads:
“(b) Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”
Thus, under the Rule as it now reads, the judgment of May 4 as it stood after amendment on June 1 was not an appeal-able judgment as to the claims determined therein, for the District Court neither expressly directed the entry of a final judgment as to them nor made an express determination that there wás no just reason for delay. And as the Rule itself explicitly prescribes in its last sentence: “In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” An express determination of no just cause for delay and an express direction for entry of a final judgment as to claims' disposed of are made essential prerequisites by the Rule to the right to appeal from the decision of those claims. From this it follows that Seaboard’s first appeal, No. 5028, which was taken originally in the absence of the determination and direction for the entry of judgment required by the Rule, was abortive and must be dismissed. Winsor v. Dau-mit, 7 Cir., 1950, 179 F.2d 475 and cases cited.
We do not have occasion here to consider whether the belated determination of the District Court under Rule 54(b) that there was no just reason for delay can be related back, or given retroactive effect, to perfect Seaboard’s first appeal. Nor do we have1 present occasion to decide whether we would adopt the practice in the Second Circuit, Republic of China v. American Express Co., 1951, 190 F.2d 334, 340 and cases cited, and apparently also in the Third Circuit, Etten v. Kauffman, 1950, 179 F.2d 302, 303, of dismissing an appeal such as this for lack of jurisdiction but holding that if upon remand the appellant should obtain from the District Court the certificate required by the Rule and take another appeal, and, if the parties should consent to such a course, we would dec*de the questions presented on the reeord as so supplemented. These are extraordinary procedures to be resorted to, if at all, only when absolutely necessary, this case such procedures are not necessary for Seaboard’s second appeal, No. 5064, was timely and is before us and presents the same questions already briefed and argued on the first appeal. Under these circumstances it would be pointless to postpone consideration of the merits until that appeal should be reached in normal course, for presumably we would then consider the merits on the same papers and on a repetition of the same arguments we have already seen and heard. We shall, therefore, grant the appellant’s unopposed motion in No. 5064 mentioned above and consider the merits on that appeal without requiring the submission of further papers. or arguments.
Seaboard, as stated at the outset of this opinion, is seeking specific performance of-' two identical contracts of indemnity executed by the defendants in consideration of the issuance by Seaboard of the performance and payment bonds required by the terms of two separate contracts entered into by the defendant Dale with the United States for construction work on two government installations — one the Boston Army Base and the other the South Boston Annex of the Boston Naval Shipyard. Seaboard rests its claim for relief on the following facts, as to which- there is little or no dispute.
In June 1950, Dale Construction Co., referred to herein simply as Dale, entered into a standard form contract with the United States to replace the water main at the Boston Army Base. Because of difficulty in obtaining materials, work, was not actually begun until late October and thereafter work was delayed by bad weather. In January .1951, the date for completion of the work was extended by agreement until September 28, 1951, but even so the work was not finished by that time, and in October Dale asked for a further extension to June 2, 1952. Its request was not formally granted but a letter from the contracting officer at the Base might perhaps be construed as informally granting some extension. At any rate early in December Dale took its men, except for watchmen, off the job and later that month asked for permission to stop work until spring. Its request was refused but nevertheless Dale did not resume work under its contract.
Not only did work on the job progress slowly but in a number of respects the work done was not performed to the satisfaction of the contracting officer who on several occasions expressed his dissatisfaction to Dale both orally and in writing, and sent copies of his correspondence to Seaboard. In this state of affairs, work still being at a standstill, the contracting officer wrote Dale on January 18, 1952, terminating its right to finish the work called for in the contract. He rested his determination on three grounds: 1) deficiencies in past performance not corrected within a reasonable time after notice thereof, 2) failure to make progress at a rate to insure completion by the specified date as extended, and 3) failure to comply with verbal and written instructions to do the work in accordance with specifications. In the letter the contracting officer notified Dale of its right under article 15 of the contract to appeal his findings within 30 days to the Secretary or his designated representative.
The contracting officer at the same time notified Seaboard of his termination of Dale’s contract and asked Seaboard to indicate within ten days, or sooner if possible, whether it would elect to take over and complete the work or whether it would not, in which event the Government would re-advertize for completion by another contractor. Seaboard elected within the time specified to complete the work itself and it procured a contractor who did so at a stipulated cost to it of $31,870.38. In the meantime, however, and before Seaboard made its election, Dale notified Seaboard that it would appeal the contracting officer’s findings of default, and Dale did so and eventually prevailed. The Secretary’s representative, the Armed Services Board of Contract Appeals, held on June 11, 1954, before this case came on for trial in the court below, that there had been no default by Dale and that its contract should not have been terminated.
The experience of the parties with respect to the Naval Shipyard contract differed in its details but was essentially the same as their experience under the Army Base contract. It will suffice to note that the stipulated cost to Seaboard of completing the Naval Shipyard contract was $34,520.81 and that Dale’s appeal to the Armed Services Board of Contract Appeals from the contracting officer’s finding of default and conclusion of termination was still pending at the time of trial below and, so far as we know, is still pending.
The District Court took the view that under the decision in United States v. Wunderlich, 1951, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 the finding of the Armed Services Board of Contract Appeals that Dale was not in default on its Army Base contract was, in the absence of evidence of fraud or collusion, final and conclusive not only as between the parties to that contract but also as between the parties to the indemnity agreement entered into between Seaboard and the defendants. Wherefore it concluded that Seaboard had acted at its peril when it stepped in and took over completion of Dale’s contract in advance of a final administrative determination of the question of default which it knew Dale had requested. On this basis it reached the conclusion that Seaboard was not entitled to recover because its payments to the contractor it employed to finish the job “were voluntary payments as distinguished from payments for which there was liability.” Thus it dismissed Seaboard’s complaint so far as the Army Base contract was concerned for lack of jurisdiction for in its view, the key issue was Dale’s default and that issue under the Wun-derlich decision could be litigated only before the Armed Services Board of Contract Appeals.
By the same reasoning the court reached a like result so far as the Naval Shipyard contract was concerned. But as to that contract it dismissed Seaboard’s complaint without prejudice as premature because the issue of Dale’s default under that contract was still pending before the Armed Services Board of Contract Appeals.
It seems to us that the District Court in reaching its result lost sight of the language of the 9th paragraph of the indemnity agreements on which Seaboard brought suit wherein it is provided:
“That the Surety shall, at its option and in its sole discretion, have the right to take possession of all or any part of the work of the said contract, whenever, in its sole opinion, such action is desirable or necessary, and at the expense of the undersigned and each of them to complete, or cause the completion of, any such work, or re-let, or consent to the' re-letting or completion of, such contract.”
This provision certainly gives Seaboard the whip-hand over the principals. But it is not suggested that the provision is in violation of any specific rule of law, or contrary to public policy, or so unconscionable that it ought not be enforced by a court of equity. And it does not make default by the contractor-principal, Dale, a condition precedent to the right of the surety, Seaboard, to take over and complete all or any part of the work the contractor engaged to perform. It provides instead that the surety has the right to step in and take over the work at the contractor’s expense whenever in its sole opinion such action is either desirable or necessary. Thus the basic issue in the case is not whether Dale defaulted on its Army Base contract. It is whether Dale’s prosecution of the work under the contract was so slow and so much at variance with specifications, that Seaboard in good faith believed it was either desirable or necessary for it to take over the work in order to protect its interests as surety. And this issue has not been passed upon by the District Court. That court’s finding on Dale’s counterclaim that “the evidence was insufficient to show that Seaboard maliciously and wrongfully caused the contract breach” points to a finding of Seaboard’s good faith in its dealings with its principals but falls short of a clear determination of that issue. The case must, therefore, be remanded for hearing on the issue of Seaboard’s good faith, provided the defendants indicate that they have evidence to offer of its bad faith, and decision of that issue. The same must also be done with respect to the Naval Shipyard contract. And, if that issue is resolved in Seaboard’s favor, it is entitled to judgment in accordance with its motion to that effect in the stipulated amounts it paid to complete the contracts. The defendants’ counterclaim with respect to the Army Base contract has been disposed of. Their counterclaim with respect to the Naval Shipyard contract, however, remains for determination.
Seaboard’s first appeal, No. 5028, is dismissed for lack of appellate jurisdiction. On its second appeal, No. 5064, the judgment of the District Court is vacated and set aside and the case is remanded to that court for further proceedings not inconsistent with this opinion; no costs in this court.
. It had apparently not paid any lien claims on the Naval Shipyard contract.
. In view of the basis for our decision to be stated presently it is not necessary to consider whether the surety in this case is bound by the decision of the ASBCA and if bound whether it could appeal to the courts. But it should be noted that the scope of the Wunderlich decision was limited by statute on May 11, 1954, 68 Stat. 81, 41 U.S.C.A. § 821.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genresp1
|
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.
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.
Charles E. HOFMANN, Appellant, v. John J. SCHAEFER and Brewery Workers Local Union No. 1010, I. B. T., Appellees.
No. 80-1863.
United States Court of Appeals, Fourth Circuit.
Argued April 7, 1981.
Decided May 6, 1981.
Alfred E. Clasing, III, William J. Blondell, Jr., Baltimore, Md., for appellant.
Marvin Poe Sklar, Baltimore, Md., for appellees.
Before PHILLIPS and ERVIN, Circuit Judges, and ANDERSON, District Judge.
Honorable G. Ross Anderson, Jr., United States District Judge for the District of Maryland, sitting by designation.
PER CURIAM:
Appellant Hofmann brought suit under Title I of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 411-415. He alleged that the bylaws of his union local had been misinterpreted in order to deny him eligibility to challenge the incumbent president of the local, appellee Schaefer, in an upcoming union election. At a hearing on Hofmann’s motion for a temporary restraining order, the district court found that Hofmann’s claim was not one properly addressed under Title I and therefore dismissed his suit for lack of subject matter jurisdiction.
Under § 101(a)(1) of Title I of the LMRDA, 29 U.S.C. § 411(a)(1), every union member must be afforded the equal right and privilege to nominate candidates and vote in union elections, and any member whose rights under section 101(a)(1) have been infringed may bring suit in a federal district court, § 102 of the LMRDA, 29 U.S.C. § 412. Under § 401 of Title IV of the LMRDA, 29 U.S.C. § 481, every member of a union in good standing is made “eligible to be a candidate to hold office.” A complaint alleging a violation of section 401, however, is properly addressed to the Secretary of Labor for investigation and the possible institution of suit by the Secretary. § 402 of the LMRDA, 29 U.S.C. § 482.
In Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964), the Supreme Court stated that “possible violations of Title IV of the Act regarding eligibility [to be a candidate for union office] are not relevant in determining whether or not a district court has jurisdiction under Sec. 102 of Title I of the Act.” Therefore, the Court held that suits “basically relating ... to eligibility of candidates for office ... fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedure set out in that Title.” Id. at 141, 85 S.Ct. at 296.
Because Hofmann’s claim is one basically relating to his eligibility as a candidate for union office, it is, under the holding in Calhoon, a claim properly addressed to the Secretary under Title IV rather than the courts under Title I. Accordingly, we affirm the district court’s dismissal of Hofmann’s suit for lack of subject matter jurisdiction.
AFFIRMED.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Maria GONZALEZ and Daniel Sirotsky, Plaintiffs-Appellants, v. Gene McNARY and Richard Smith, Defendants-Appellees.
No. 91-5656.
United States Court of Appeals, Eleventh Circuit.
Jan. 13, 1993.
Edgardo V. Caturla, Miami, Fla., for plaintiffs-appellants.
Dexter W. Lehtinen, U.S. Atty., Dexter A. Lee, Asst. U.S. Atty., Lisa T. Rubio, Miami, Fla., for defendants-appellees.
Before TJOFLAT, Chief Circuit Judge; EDMONDSON, Circuit Judge; and MORGAN, Senior Circuit Judge.
MORGAN, Senior Circuit Judge:
Appellants Maria Gonzalez and Daniel Sirotsky filed applications for permanent residence in the United States pursuant to section 1 of the Cuban Refugee Adjustment Act of 1966 (hereinafter the Act). The district court upheld the denial of the applications on the ground that Appellants were statutorily ineligible for adjustment of status since they were no longer residing with Marino Gonzalez, the qualifying Cuban. We AFFIRM.
STATEMENT OF FACTS
Maria Gonzalez is a native and citizen of Peru. She entered the United States as a tourist in October of 1983 and has resided in the United States since that date. On December 12, 1983, Maria Gonzalez married the late Marino Gonzalez, a Cuban refugee. Daniel Sirotsky is the natural minor child of Maria Gonzalez and the stepchild of her late husband, Marino Gonzalez.
On April 29, 1985, Marino Gonzalez applied for lawful permanent residence pursuant to the Act. Shortly thereafter, Maria Gonzalez and Sirotsky filed their applications for permanent residence under the Act, based on their status as the spouse and stepchild of Marino Gonzalez. On June 9, 1986, Marino Gonzalez’ application was approved, but Appellants’ applications were not acted upon.
Marino Gonzalez passed away on May 14, 1988. On September 30, 1988, Richard Smith, District Director of the Florida District of the Immigration and Naturalization Services (INS), denied Appellants’ applications. The sole basis for denial was that Appellants were no longer “residing with” Marino Gonzalez after his death. This denial was affirmed by Robert McNary as Commissioner of the INS.
On July 11, 1990, Maria Gonzalez and Sirotsky filed a complaint in the District Court of the Southern District of Florida seeking declaratory and injunctive relief against Smith and McNary. The complaint alleged that, as the wife and stepchild of a Cuban citizen who had been admitted for permanent residence under the Act, they were entitled to be admitted as permanent residents and that Appellees’ denial of their applications was arbitrary and capricious and contrary to the specific language and purpose of the Act.
Appellees filed a motion to dismiss the complaint on the ground that Appellants were statutorily ineligible to adjust their status under the Act since they no longer resided with Marino Gonzalez. The district court dismissed Appellants’ complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. 765 F.Supp. 721.
STANDARD OF REVIEW
When reviewing the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), this Court must accept the allegations set forth in the complaint as true. The district court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); see also, Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (“[W]e may not affirm unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.”). However, the district court’s disposition of Appellees’ motion to dismiss involved its interpretation of section 1 of the Act. We review de novo questions of statutory interpretation. United States v. Fleet Factors Corp., 901 F.2d 1550, 1553 (11th Cir.1990).
DISCUSSION
Appellants characterize the denial of their applications as arbitrary and capricious and an abuse of discretion. The INS, under authority delegated by the Attorney General, clearly has discretion under the Act to adjust the status of the spouse and child of a Cuban alien who has been admitted for permanent residence. However, this discretion only extends to the spouse and child if they are statutorily eligible. The discretion of the INS does not vest until they become statutorily eligible.
Appellants challenge the district court’s conclusion that they were statutorily ineligible for adjustment under the Act. The starting point in statutory construction must be the language of the statute itself. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). "[T]he meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). Courts must assume that Congress intended the ordinary meaning of the words it used, and absent a clearly expressed legislative intent to the contrary, that language is generally dispositive. 447 U.S. at 108, 100 S.Ct. at 2056.
Appellants contend that the term “residing with such alien in the United States” is ambiguous. Appellants’ applications for adjustment of status were based on Marino Gonzalez’ status as a Cuban alien who had obtained permanent residence under the Act. The language of the Act declares that its provisions shall be applicable to the spouse and child who are “residing with ” an alien who has been lawfully admitted for permanent residence. Appellants argue that the Act does not require actual physical residence with the qualifying Cuban resident. Instead, it only requires the spouse and child to reside within the United States, regardless of whether they are residing with the Cuban alien. This argument is rebutted by the plain language of the statute which clearly requires that the spouse and child reside with the Cuban alien and reside in the United States. We need not decide the exact meaning of the term “residing with” since Appellants clearly were not residing with Marino Gonzalez four months after his death, when their applications were denied.
Because the Act represents refugee legislation of a humanitarian nature, Appellants argue that it should be construed similarly with other, more general sections of the Immigration and Nationality Act (INA). see generally INA § 203, 8 U.S.C. 1153 (Supp.1992). A statute should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant. Sutherland Stat. Const. § 46.06 (5th Ed.). It is a court’s duty “to give effect, if possible, to every clause and word of a statute.” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955). It is true that section 1 of the Act imposes an additional requirement of residence not mandated in other sections of the INA. However, this distinction shows that Congress intended the residence requirement to be an additional prerequisite to statutory eligibility. While eligibility under other sections is determined by whether a bona fide marriage exists, the clear, plain and unambiguous language of section 1 of the Act requires that the spouse also reside with the qualifying Cuban alien. A contrary interpretation would render the term “residing with” superfluous.
Appellants also argue that the district court’s conclusion does not comport with the purpose or legislative history of the Act. Absent a clearly expressed legislative intent to the contrary, the plain and unambiguous language of the statute must prevail. Consumer Product Safety Comm’n, 447 U.S. at 108, 100 S.Ct. at 2056. The purpose of the Act’s provision permitting a spouse and child of a Cuban alien to obtain permanent residence is to promote family unity. See H.R.Rep. No. 1978; 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N. 3792, 3799 (letter of Deputy Attorney General Ramsey Clark). Congress intended to permit the spouse and children of a Cuban who had become a lawful permanent resident to also become residents and remain in the United States. The condition for obtaining such a benefit was that the spouse and child must reside with the Cuban alien in the United States. Once the qualifying Cuban alien dies, there is no family unity purpose to be served. The wife and child can be unified in their home country of Peru as well as in the United States. Appellants argue that this interpretation runs contrary to the legislative intent. However, there is no evidence indicating that Congress intended a contrary result and in fact, the legislative history supports our decision.
CONCLUSION
According to the express language of section 1 of the Act, residence with the Cuban alien spouse is required in order to be eligible for adjustment of status. The facts set forth in Maria Gonzalez’ and Si-rotsky’s complaint clearly show that they were not residing with Marino Gonzalez, the qualifying Cuban alien, at the time their applications were denied. Since Appellants were statutorily ineligible for adjustment, their complaint failed to state a claim upon which relief could be granted. Therefore, the decision of the district court is AFFIRMED.
. Section 1 of the Cuban Refugee Adjustment Act of 1966, Pub.L. No. 89-732, 80 Stat. 1161, as amended 8 U.S.C. § 1255 note (Supp.1992) provides:
That, notwithstanding the provisions of Section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
... the provisions of this act shall be applicable to the spouse and child of any alien described in this subsection, regardless of the citizenship and place of birth, who are residing with such alien in the United States.
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_petitioner
|
167
|
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.
SEARS, ROEBUCK & CO. v. STIFFEL COMPANY.
No. 108.
Argued January 16, 1964.
Decided March 9, 1964.
Will Freeman argued the cause for petitioner. With him on the briefs were Frank H. Marks, D. D. Allegretti and George B. Newitt.
Warren C. Horton argued the cause for respondent. With him on the brief was Max R. Kraus.
Solicitor General Cox, Assistant Attorney General Orrick, Daniel M. Friedman and Lionel Kestenbaum filed a brief for the United States, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The question in this case is whether a State’s unfair competition law can, consistently with the federal patent laws, impose liability for or prohibit the copying of an article which is protected by neither a federal patent nor a copyright. The respondent, Stiffel Company, secured design and mechanical patents on a “pole lamp” — a vertical tube having lamp fixtures along the outside, the tube being made so that it will stand upright between the floor and ceiling of a room. Pole lamps proved a decided commercial success, and soon after Stiffel brought them on the market Sears, Roebuck & Company put on the market a substantially identical lamp, which it sold more cheaply, Sears’ retail price being about the same as Stiffel’s wholesale price. Stiffel then brought this action against Sears in the United States District Court for the Northern District of Illinois, claiming in its first count that by copying its design Sears had infringed Stiffel’s patents and in its second count that by selling copies of Stiffel’s lamp Sears had caused confusion in the trade as to the source of the lamps and had thereby engaged in unfair competition under Illinois law. There was evidence that identifying tags were not attached to the Sears lamps although labels appeared on the cartons in which they were delivered to customers, that customers had asked Stiffel whether its lamps differed from Sears’, and that in two cases customers who had bought Stiffel lamps had complained to Stiffel on learning that Sears was selling substantially identical lamps at a much lower price.
The District Court, after holding the patents invalid for want of invention, went on to find as a fact that Sears’ lamp was “a substantially exact copy” of Stiffel’s and that the two lamps were so much alike, both in appearance and in functional details, “that confusion between them is likely, and some confusion has already occurred.” On these findings the court held Sears guilty of unfair competition, enjoined Sears “from unfairly competing with [Stiffel] by selling or attempting to sell pole lamps identical to or confusingly similar to” Stiffel’s lamp, and ordered an accounting to fix profits and damages resulting from Sears’ “unfair competition.”
The Court of Appeals affirmed. 313 F. 2d 115. That court held that, to make out a case of unfair competition under Illinois law, there was no need to show that Sears had been “palming off” its lamps as Stiffel lamps; Stiffel had only to prove that there was a “likelihood of confusion as to the source of the products” — that the two articles were .sufficiently identical that customers could not tell who had made a particular one. Impressed by the “remarkable sameness of appearance” of the lamps, the Court of Appeals upheld the trial court’s findings of likelihood of confusion and some actual confusion, findings which the appellate court construed to mean confusion “as to the source of the lamps.” The Court of Appeals thought this enough under Illinois law to sustain the trial court’s holding of unfair competition, and thus held Sears liable under Illinois law for doing no more than copying and marketing an unpatented article. We granted certiorari to consider whether this use of a State’s law of unfair competition is compatible with the federal patent law. 374 U. S. 826.
Before the Constitution was adopted, some States had granted patents either by special act or by general statute, but when the Constitution was adopted provision for a federal patent law was made one of the enumerated powers of Congress because, as Madison put it in The Federalist No. 43, the States “cannot separately make effectual provision” for either patents or copyrights. That constitutional provision is Art. I, § 8, cl. .8, which empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this constitutional authority, Congress in 1790 enacted the first federal patent and copyright law, 1 Stat. 109, and ever since that time has fixed the conditions upon which patents and copyrights shall be granted, see 17 U. S. C. §§ 1-216; 35 U. S. C. §§ 1-293. These laws, like other laws of the United States enacted pursuant to constitutional authority, are the supreme law of the land. See Sperry v. Florida, 373 U. S. 379 (1963). When state law touches upon the area of these federal statutes, it is “familiar doctrine” that the federal policy “may not be set at naught, or its benefits denied” by the state law. Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173, 176 (1942). This is true, of course, even if the state law is enacted in the exercise of otherwise undoubted state power.
The grant of a patent is the grant of a statutory monopoly; indeed, the grant of patents in England was an explicit exception to the statute of James I prohibiting monopolies. Patents are not given as favors, as was the case of monopolies given by the Tudor monarchs, see The Case of Monopolies (Darcy v. Allein), 11 Co. Rep. 84 b., 77 Eng. Rep. 1260 (K. B. 1602), but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention. During that' period of time no one may make, use, or sell the patented product without the patentee’s authority. 35 U. S. C. § 271. But in rewarding useful invention, the “rights and welfare of the community must be fairly dealt with and effectually guarded.” Kendall v. Winsor, 21 How. 322, 329 (1859). To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. To begin with, a genuine “invention” or “discovery” must be demonstrated “lest in the constant demand for new appliances the heavy hand of tribute be laid on each slight technological advance in an art.” Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84, 92 (1941); see Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 152-153 (1950); Atlantic Works v. Brady, 107 U. S. 192,199-200 (1883). Once the patent issues, it is strictly construed, United States v. Masonite Corp., 316 U. S. 265, 280 (1942), it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 492 (1942), the pat-entee’s control over the product when it leaves his hands is sharply limited, see United States v. Univis Lens Co., 316 U. S. 241, 250-252 (1942), and the patent monopoly may not be used in disregard of the antitrust laws, see International Business Machines Corp. v. United States, 298 U. S. 131 (1936); United Shoe Machinery Corp. v. United States, 258 U. S. 451, 463-464 (1922). Finally, and especially relevant here, when the patent expires the monopoly created by it expires, too, and the right to make the article — including the right to make it in precisely the shape it carried when patented — passes to the public. Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 120-122 (1938); Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 185 (1896).
Thus the patent system is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition. Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.
In the present case the “pole lamp” sold by Stiffel has been held not to be entitled to the protection of either a mechanical or a design patent. An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so. What Sears did was to copy Stiffens design and to sell lamps almost identical to those sold by Stiffel. This it had every right to do under the federal patent laws. That Stiffel originated the pole lamp and made it popular is immaterial. “Sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.” Kellogg Co. v. National Biscuit Co., supra, 305 U. S., at 122. To allow a State by use of its law of unfair competition to prevent the copying of an article which represents too slight an advance to be patented would be to permit the State to block off from the public something which federal law has said belongs to the public. The result would be that while federal law grants only 14 or 17 years’ protection to genuine inventions, see 35 U. S. C. §§ 154, 173, States could allow perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards. This would be too great an encroachment on the federal patent system to be tolerated.
Sears has been held liable here for unfair competition because of a finding of likelihood of confusion based only on the fact .that Sears’ lamp was copied from Stiffel’s unpatented lamp and that consequently the two looked exactly alike. Of course there could be “confusion” as to who had manufactured these nearly identical articles. But mere inability of the public to tell two identical articles apart is not enough to support an injunction against copying or an award of damages for copying that which the federal patent laws permit to be copied. Doubtless a State may, in appropriate circumstances, require that goods, whether patented or unpatented, be labeled or that other precautionary steps be taken to prevent customers from being misled as to the source, just as it may protect businesses in the use of their trademarks, labels, or distinctive dress in the packaging of goods so as to prevent others, by imitating such markings, from misleading purchasers as to the source of the goods. But because of the federal patent laws a State may not, when the article is unpatented and uncopyrighted, prohibit the copying of the article itself or award damages for such copying. Cf. G. Ricordi & Co. v. Haendler, 194 F. 2d 914, 916 (C. A. 2d Cir. 1952). The judgment below did both and in so doing gave Stiffel the equivalent of a patent monopoly on its unpatented lamp. That was error, and Sears is entitled to a judgment in its favor.
Reversed.
[For concurring opinion of Mr. Justice Harlan, see post, p. 239.]
No review is sought here of the ruling affirming the District Court’s holding that the patent is invalid.
313 F. 2d, at 118 and nn. 6,7. At least one Illinois case has held in an exhaustive opinion that unfair competition under the law of Illinois is not proved unless the defendant is shown to have “palmed off” the article which he sells-as that of another seller; the court there said that “[t]he courts in this State do not treat the ‘palming off’ doctrine as merely the designation of a typical class of cases of unfair competition, but they announce it as the rule of law itself — the test by which it is determined whether a given state of facts constitutes unfair competition as a matter of law. . . . The ‘palming off’ rule is expressed in a positive, concrete form which will not admit of ‘broadening’ or ‘widening’ by any proper judicial process.” Stevens-Davis Co. v. Mather & Co., 230 Ill. App. 45, 65-66 (1923). In spite of this the Court of Appeals in its opinions both in this case and in Day-Brite Lighting, Inc., v. Compco Corp., 311 F. 2d 26, rev’d, post, p. 234, relied upon one of its previous decisions in a trade-name case, Independent Nail & Packing Co. v. Stronghold Screw Products, 205 F. 2d 921 (C. A. 7th Cir. 1953), which concluded that as to use of trade names the Stevens-Davis rule had been overruled by two subsequent Illinois decisions. Those two cases, however, discussed only misleading,use of trade names, not copying of articles of trade. One prohibited the use of a name so similar to that of another seller as to deceive or -confuse customers, even though the defendant company did not sell the same products as the plaintiff and so in one sense could not be said to have palmed off its goods as those of a competitor, since the plaintiff was not a competitor. Lady Esther, Ltd., v. Lady Esther Corset Shoppe, Inc., 317 Ill. App. 451, 46 N. E. 2d 165 (1943). The other Illinois case on which the Court of Appeals relied was a mandamus action which held that under an Illinois statute a corporation was properly denied registration in the State when its name was “deceptively similar” to that of a corporation already registered. Investors Syndicate of America, Inc., v. Hughes, 378 Ill. 413, 38 N. E. 2d 754 (1941). The Court of Appeals, by holding that because Illinois forbids misleading use of trade names it also forbids as unfair competition the mere copying of an article of trade without any palming off, thus appears to have extended greatly the scope of the Illinois law of unfair competition beyond the limits indicated in the Illinois cases and beyond any previous decisions of the Seventh Circuit itself. Because of our disposition of these cases we need not decide whether it was correct in doing so.
See I Walker, Patents (Deller ed. 1937), § 7.
The Federalist (Cooke ed. 1961) 288.
Patent rights exist only by virtue of statute. Wheaton v. Peters, 8 Pet. 591, 658 (1834).
The Statute of Monopolies, 21 Jac. I, c. 3 (1623), declared all monopolies “contrary to the Laws of this Realm” and “utterly void and of none Effect.” Section VI, however, excepted patents of 14 years to “the true and first Inventor and Inventors” of “new Manufactures” so long as they were “not contrary to the Law, nor mischievous to the State, by raising Prices of Commodities at home, or Hurt of Trade, or generally inconvenient . . . .” Much American patent law derives from English patent law. See Pennock v. Dialogue, 2 Pet. 1, 18 (1829).
The purpose of Congress to have national uniformity in patent and copyright laws can be inferred from such statutes as that which vests exclusive jurisdiction to hear patent and copyright cases in federal courts, 28 U. S. C. § 1338 (a), and that section of the Copyright Act which expressly saves state protection of unpublished writings but does not include published writings, 17 U. S. C. § 2.
U. S. Const., Art. VI.
It seems apparent that Illinois has not seen fit to impose liability on sellers who do not label their goods. Neither the discussions in the opinions below nor the briefs before us cite any Illinois statute or decision requiring labeling.
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_circuit
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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 circuit of the court that decided the case.
Carl F. ROGHAN, Plaintiff-Appellant, v. John BLOCK, Secretary of United States Department of Agriculture; Allen Brock, Acting Assistant Administrator for Farmer Programs; Charles Shuman, Administrator of the Farmers Home Administration; Calvin Lutz, Acting State Director for Michigan; Russell K. Keech, District Director; Richard Stranton, District Director; Walter N. Bayer, Jr., County Supervisor; United States Department of Agriculture, Defendants-Appellees.
No. 84-1518.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 21, 1985.
Decided May 14, 1986.
Paul B. Newman (argued), Associate Counsel, Newaygo, Mich., for plaintiff-appellant.
John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Edith A. Landman (argued), Asst. U.S. Atty., for defendants-appellees.
Before KEITH and KRUPANSKY, Circuit Judges, and JOINER, Senior District Judge.
Hon. Charles W. Joiner, United States Senior District Judge for the Eastern District of Michigan, sitting by designation.
PER CURIAM.
Plaintiff Carl F. Roghan appealed the district court’s denial of a preliminary injunction in this action under the Consolidated Farm and Rural Development Act (CFRDA), 7 U.S.C. §§ 1921 et seq., to set aside the foreclosure of a loan by defendant Secretary of Agriculture.
The record disclosed the following facts. On August 8, 1979, plaintiff submitted a loan application to the Farmers Home Administration (FmHA) for the purchase of a 67-acre farm. Plaintiff’s application was approved and on January 18, 1980 plaintiff received an $85,000 real estate loan and on January 23, 1980, plaintiff received a $21,-000 chattel loan, which were evidenced by two promissory notes, one secured by a real estate mortgage and the other secured by a security agreement in livestock and certain farm equipment. Plaintiff’s 1980 annual gross income was far less than he had anticipated and he permitted his insurance to lapse in that year. The FmHA County Supervisor was thereafter notified. Plaintiff subsequently tendered a total of $901 in two payments on his 1980 and 1981 annual loan repayment obligations, which amounted to $22,611, resulting in an accumulated delinquency for the two years of $21,710. The County Supervisor on April 15, 1982 recommended to FmHA that foreclosure proceedings be initiated due to plaintiff’s continued failure to pay real estate taxes and loan installments.
Plaintiff was notified by FmHA on June 1, 1982 that his payments were accelerated and that his entire outstanding loan obligation was immediately due. He was also apprised of his right to appeal the action taken. On June 5,1982, plaintiff requested a hearing on the FmHA’s action, which was scheduled for July 22, 1982. Plaintiff thereafter requested two extensions and failed to appear for the third scheduled hearing date on September 20,1982. Plaintiff was notified that FmHA would conduct a foreclosure sale on March 10, 1983 and that plaintiff possessed a right of redemption of the property within one year of sale. On March 10, 1983, FmHA purchased the property at the foreclosure sale. Plaintiff continued to reside on the property. On March 10, 1984, plaintiff’s redemption rights under Michigan law expired. On May 22, 1984, the County Supervisor on behalf of FmHA took possession of the chattels identified in the security agreement and advised plaintiff that he could redeem such articles until May 30, 1984, which he did not do.
On June 4, 1984, plaintiff commenced this action against the Secretary of Agriculture and others charging that he had been deprived of due process under the CFRDA inasmuch as the Secretary had failed to promulgate regulations and procedures to enforce and apply 7 U.S.C. § 1981a and that the appropriate officials had not advised plaintiff of his rights to deferral of payments under § 1981a prior to acceleration. Plaintiff filed a motion for a preliminary injunction in the district court seeking to enjoin FmHA from denying him loan deferral relief under § 1981a, from evicting him, and from disposing of the loan collateral, and to set aside the March, 10, 1983 foreclosure sale. The district court conducted a hearing on the motion for preliminary injunction and thereafter denied preliminary relief. See Roghan v. Block, 590 F.Supp. 150 (W.D.Mich.1984).
Plaintiff in the district court argued that he was a member of a plaintiff class in another action before the same district judge in which preliminary injunctive relief had issued, Rutan v. Block, No. G83-19CA (W.D.Mich. Jan. 16, 1984). Consequently, plaintiff contended that the injunction in Rutan inured to his benefit so as to prevent the FmHA from pursuing foreclosure and related proceedings in the instant case. In Rutan, the named plaintiffs sought to compel the FmHA to promulgate regulations to implement § 1981a and requested declaratory and injunctive relief to enjoin defendants from foreclosing on farm operating, ownership, and emergency loans, financed under the CFRDA, without first providing the borrowers with personal notice of and opportunity to apply for deferral or other loan servicing relief before any acceleration action was commenced. On November 29, 1983, Judge Gibson, the same district judge who rendered the decision below in the case sub judice, preliminarily enjoined the FmHA from: (1) accelerating the indebtedness of the plaintiffs; (2) foreclosing on the real property or chattels of the plaintiffs; (3) demanding voluntary conveyance by the plaintiffs; (4) repossessing chattels of the plaintiffs or in any way proceeding against or depriving the plaintiffs of property in which the defendants had a security interest; and (5) withholding from the plaintiffs the living and operating expenses previously determined. The district judge certified a plaintiff class in Rutan composed of all farmers in the State of Michigan who presently have farm ownership, operating, or emergency loans financed by the Farmers Home Administration under the Consolidated Farm and Rural Development Act and whose loan accounts are delinquent or have been accelerated or which may hereafter be accelerated by the Farmers Home Administration and made subject to foreclosure. The preliminary injunction was extended to the Rutan class on January 16, 1984.
In the matter at bar, Judge Gibson rejected plaintiff’s contention in the district court that he was a member of the Rutan plaintiff class and thus was entitled to preliminary injunctive relief, explaining:
[T]he plaintiff’s loans were accelerated, foreclosed upon, and the security for them sold at auction by March 10, 1983, ten months before the class was certified. By the Rutan stipulation the FmHA agreed “not to foreclose upon any class members until [the] Court has heard the merits of the case.” Inasmuch as the parties in Rutan did not agree expressly to include persons whose loans had already been foreclosed upon, and in light of the fact that that action had been brought to prevent foreclosures until the FmHA promulgates appropriate regulations, the Court is of the opinion that the class was not intended to include persons whose loans had already been foreclosed upon.
Roghan v. Block, 590 F.Supp. at 151-52 (footnote omitted) (emphasis in original).
Plaintiff secondly contended in the district court that he was entitled to preliminary injunctive relief in his own right, independent of the scope of the Rutan class. The district court noted that no overriding harm to plaintiff would occur by virtue of its not issuing a preliminary injunction inasmuch as plaintiff had pursued no affirmative action challenging FmHA’s actions in the face of acceleration, foreclosure, sale, and expiration of the redemption period prior to his suit in district court, despite the fact that he possessed several opportunities to administratively appeal the decisions. For the same reasons, the district court concluded that the public interest would not be furthered by the issuance of a preliminary injunction. The district court accordingly denied plaintiff’s motion for a preliminary injunction. Roghan v. Block, 590 F.Supp. at 152-53.
Plaintiff appealed the district court’s denial of preliminary injunctive relief to this court. Both the district court and this court denied plaintiff’s motions for injunction pending appeal. Plaintiff before this panel raised essentially the same two bases for injunctive relief as he had pressed in the district court, namely, that he was a member of the Rutan class and, secondly, that he should be accorded preliminary injunctive relief in his own right.
The standard of review on appeal from the grant or denial of a preliminary injunction is limited to an abuse of discretion evaluation of the district court’s action. Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, — U.S. -, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985). Four factors are considered in determining whether a grant or denial of preliminary injunctive relief constituted an abuse of discretion: (a) the likelihood of success on the merits of the action; (b) the irreparable harm that could result without the requested relief; (c) the impact on the public interest; and (d) the possibility of substantial harm to others. Id.
This court is of the opinion that the district judge’s construction of the scope of his own class certification order in Rutan was reasonable. It is sensible to decline to expand the reach of a plaintiff class in such a context beyond the purposes of such litigation of preventing foreclosures which had not yet transpired as of the date suit was filed. With respect to plaintiff’s claim of entitlement to preliminary injunctive relief in his own right, this court’s attention is directed to this circuit’s decision in Ramey v. Block, 738 F.2d 756 (6th Cir.1984), which compels the conclusion that plaintiff is unlikely to succeed on the merits of his claim. Additionally, this court considers the district court’s articulated reasons for the denial of an injunction to be sound. Accordingly, the district judge did not abuse his discretion in denying preliminary injunctive relief to plaintiff either as a purported Rutan class member or in his own right.
Based upon the foregoing, the order of the district court denying plaintiffs motion for a preliminary injunction is AFFIRMED.
. Section 1981a provides:
§ 1981a. Loan moratorium and polity on foreclosures
In addition to any other authority that the Secretary may have to defer principal and interest and forego foreclosure, the Secretary may permit, at the request of the borrower, the deferral of principal and interest on any outstanding loan made, insured, or held by the Secretary under this chapter, or under the provisions of any other law administered by the Farmers Home Administration, and may forego foreclosure of any such loan, for such period as the Secretary deems necessary upon a showing by the borrower that due to circumstances beyond the borrower’s control, the borrower is temporarily unable to continue making payments of such principal and interest when due without unduly impairing the standard of living of the borrower. The Secretary may permit interest that accrues during the deferral period on any loan deferred under this section to bear no interest during or after such period: Provided, That if the security instrument securing such loan is foreclosed such interest as is included in the purchase price at such foreclosure shall become part of the principal and draw interest from the date of foreclosure at the rate prescribed by law.
7 U.S.C. § 1981a.
. In Ramey, this court concluded that the Secretary is not required to notify CFRDA borrowers of the deferral provisions set forth in § 1981a, although the Secretary must accept requests for deferral relief, establish a procedure for borrowers to demonstrate their eligibility for such relief, and specify the general standards for deferral relief in § 1981a through the promulgation of regulations or through case-by-case adjudication. 738 F.2d at 762-63. Plaintiff in the instant matter did not request loan deferral prior to the foreclosure proceedings.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_usc1sect
|
1983
|
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".
Roland D. PETTENGILL, Appellant, v. George VEASEY, Sgt., Cummins Unit, Appellee.
No. 92-1511.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 15, 1992.
Decided Jan. 12, 1993.
Roland D. Pettengill, pro se.
David B. Eberhard, Little Rock, AR, argued (Winston Bryant and David B. Eber-hard, on brief), for appellee.
Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.
McMILLIAN, Circuit Judge.
Roland D. Pettengill, an Arkansas inmate, appeals from the final judgment entered in the District Court for the Eastern District of Arkansas adopting the findings and conclusions of the magistrate judge following an evidentiary hearing and dismissing Pettengill’s failure to protect and medical needs claims brought under 42 U.S.C. § 1983. For reversal appellant argues the district court erred in making its factual and legal determinations. For the reasons discussed below, we reverse and remand the case to the district court for further proceedings.
In his complaint, Pettengill claimed that Sergeant George Veasey violated his Eighth Amendment rights by placing him in the exercise yard with a known enemy, failing to check his “enemy alert list,” and refusing to take him to the infirmary after the two inmates fought in the yard. Pet-tengill sought damages and declaratory and injunctive relief. Pettengill later amended his complaint as ordered by the magistrate judge. He reiterated his allegations and requested a jury trial.
At the evidentiary hearing, Pettengill testified that on July 25,1989, while he was on 48-hour relief from punitive isolation, he told Veasey that he wished to go to yard call. He further testified that when Veas-ey came back later to take him to yard call, he saw inmate Jaskolka, asked Veasey if they were being placed on the yard together, and informed Veasey that Jaskolka was on his enemy alert list. Pettengill stated that Veasey gave him the choice of either entering the yard with Jaskolka or refusing his yard call. Faced with these options, Pettengill chose to enter the yard despite Jaskolka’s presence. Pettengill testified that Jaskolka struck him first, knocked him to the ground, and kicked him. Pettengill further testified that Veasey and Sergeant Virgil Rhodes, another guard on yard call, stopped the fight by pulling the two inmates apart. Pettengill testified that he expressed his desire to go to the infirmary to get an ice pack for his swollen right eye and to have the cut above his right eye cleaned to prevent infection, but Veasey refused. Pettengill felt he had a “right” to go to yard call. Pettengill also testified that Veasey did not check the enemy alert lists and could have easily placed him in the second yard or taken him to the yard on a different yard call. Finally, Pettengill testified that he received Band-Aids the night of the fight but he was never seen by a doctor although he completed several sick call slips.
Inmate Lester Jacobs testified Pettengill told Veasey he and Jaskolka did not get along. Jacobs confirmed Pettengill’s testimony that Jaskolka rushed Pettengill, struck him first, and beat him to the ground. Jacobs testified that Jaskolka was waiting for an opportunity to “jump” Pet-tengill. Jacobs also testified that guards do not require inmates to go to yard call.
Don Biles, Pettengill’s cellmate on the day in question, testified Pettengill came back to the cell with a knot on his head and his right eye was swollen shut. Biles stated that he did not see a whole lot of blood, but there was some present around a small cut in Pettengill’s right eyebrow. Biles confirmed Pettengill’s testimony that he asked to go to the infirmary. Biles testified, however, that “Veasey told him to hold his horses; [l]et me call the infirmary.” Biles further testified that Veasey called the infirmary and that the policy for this particular barracks was that, once the infirmary was notified, a nurse would usually come to the barracks. Biles did not know if Pettengill ever went to the infirmary-
Sergeant Rhodes testified that he and Veasey escorted Pettengill to the yard and that Pettengill and Jaskolka were the last two inmates to be handcuffed before they brought the inmates inside from the yard. Rhodes, however, testified that Pettengill attacked Jaskolka. Rhodes also testified that Pettengill did not inform him that Jas-kolka was on his enemy alert list. He stated that if Pettengill had done so, he would have put Pettengill in the second yard. Rhodes further testified that Petten-gill did not mention going to the infirmary. Rhodes stated that Veasey told him that he would ask both Pettengill and Jaskolka if they needed to go to the infirmary.
Veasey testified that Pettengill attacked Jaskolka first and that was why he charged Pettengill with a disciplinary rule violation—Pettengill was the aggressor. Veasey also testified that Pettengill never told him that Jaskolka was on his enemy alert list. Veasey stated he did not see any bruises, cuts, or blood, and Pettengill said he did not need to go to the infirmary. Veasey testified that if he had seen blood, he would have made Pettengill go to the infirmary. Veasey acknowledged that Jas-kolka and Pettengill are listed on each other’s enemy alert lists, but, due to the number of inmates, he stated that the guards rely on the prisoners to tell them who is on their enemy alert lists.
The magistrate judge found that “it [was] more likely than not” that Rhodes, not Veasey, took Pettengill to the yard. The magistrate judge also found that Pet-tengill did not inform the guards that Jas-kolka was on his enemy alert list or seek to avoid Jaskolka, and Pettengill “took advantage of an opportunity to assault Jaskol-ka.” In addition, the magistrate judge found that while Pettengill may have been jostled in the encounter, he “was not injured to the degree that he testified, and ... there was no immediate need for medical treatment.” The magistrate judge concluded that no Eighth Amendment violation occurred and recommended dismissal. Pet-tengill objected to the magistrate judge’s view of the evidence and requested that the district court deny the recommendation and allow the case to proceed to trial. The district court adopted the recommendations and dismissed Pettengill’s claims.
Because Pettengill requested a jury trial, we conclude that the magistrate judge erroneously made credibility determinations “resolving direct factual conflicts in favor of [Veasey] without assuming as true all facts supporting [Pettengill] which the evidence tended to prove and without giving [Pettengill] the benefit of all reasonable inferences.” See Henson v. Falls, 912 F.2d 977, 979 (8th Cir.1990) (magistrate judge must apply directed verdict standard if plaintiff demands jury trial). Resolving factual disputes in Pettengill’s favor and giving him the benefit of all reasonable inferences, reasonable jurors could have concluded that Pettengill reasonably feared for his safety, reasonably apprised prison officials of the existence of the problem and showed a need for protective measures. Therefore, we conclude that the district court erred in entering judgment for Veasey because a reasonable jury could have concluded that Veasey acted in violation of Pettengill’s constitutional rights.
Similarly, we conclude the district court improperly resolved factual disputes as to Pettengill’s medical needs claim in favor of Veasey. Pettengill testified that he had a cut above his right eye, and that his right eye was swollen shut. Inmate Biles corroborated this testimony. Veasey testified he did not see any bruises, cuts, or blood. Pettengill testified that Veasey denied him access to medical care; Veasey testified that Pettengill refused medical care; inmate Biles testified that Veasey attempted to obtain medical care for Pettengill. Based on all of this conflicting testimony, however, the district court concluded that “[Pettengill] was not injured to the degree that he testified, and that there was no immediate need for medical treatment, and consequently, no failure to provide it.” Examining the evidence in a light most favorable to Pettengill, we conclude a reasonable jury could have found for Pettengill.
Accordingly, we reverse and remand this case to the district court for further proceedings consistent with this opinion.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
|
songer_crmproc1
|
52
|
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. Dale H. PRAIRIE, Defendant-Appellant.
No. 77-2271.
United States Court of Appeals, Ninth Circuit.
Feb. 1, 1978.
Rehearing En Banc Denied April 10, 1978.
Lee Petersen, of Gregg, Fraties, Petersen, Page & Baxter, Anchorage, Alaska, for defendant-appellant.
Nelson P. Cohen, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff-appellee.
Before KILKENNY and WALLACE, Circuit Judges, and PALMIERI, District Judge.
Honorable Edmund L. Palmieri, United States District Judge, Southern District of New York, sitting by designation.
WALLACE, Circuit Judge:
Prairie appeals from a two-count conviction for distribution of a controlled substance (cocaine) in violation of 21 U.S.C. § 841. We affirm.
I.
Prairie was employed as a cab driver in Anchorage, Alaska. In late November 1976, Prairie accompanied Boles, a fellow cab driver, to a motel room where Cayton was staying. The purpose of the visit was to collect money owed by Cayton to Boles as a result of prior drug transactions. Prairie was unaware that Cayton had been a paid government informant, and that state drug enforcement officers were paying Cayton’s rent and food expenditures from money owed to her in return for her participation in several recent drug cases.
A few days later Boles told Prairie that Cayton wanted to purchase some cocaine. Without further encouragement, Prairie purchased a gram of cocaine and took it to Cayton’s room. Cayton informed Prairie that she only had $50 and therefore could not purchase the entire gram. Prairie sold Cayton half of the gram and left. Later that day, Cayton telephoned Prairie and persuaded him to bring her the remaining half-gram of cocaine upon her representation that she would pay him the following day. During the ensuing days, Prairie and Cayton saw each other frequently, and Prairie continued to supply Cayton with cocaine.
On November 26,1976 Cayton telephoned Grimes, a state drug enforcement officer, and informed him that she knew a taxicab driver who was willing to sell cocaine. Grimes requested that Cayton arrange a meeting between him and Prairie. The meeting was arranged and Grimes and Prairie met later that day at Cayton’s motel room. Officer Grimes was equipped with a miniature transmitter which allowed other officers to tape record the conversation. Prairie told Officer Grimes about his extensive experience in drug transactions and they discussed the creation of a cocaine-distribution operation. No drugs were purchased on this occasion, but Prairie agreed to sell Grimes a cocaine “sample” at a later time.
Officer Grimes and Prairie met again on December 2 in Cayton’s motel room. During this meeting Prairie sold Grimes one gram of cocaine. In addition, they discussed the creation of the cocaine-distribution plan.
During the last hours of December 7, Grimes and Prairie spoke by telephone and agreed to meet in order for Grimes to purchase a larger quantity of cocaine. Later that night, the two men met at a bar and traveled to Prairie’s residence to pick up the cocaine. On this occasion, Prairie sold Officer Grimes two and one-fourth ounces of cocaine. Prairie was arrested at the conclusion of the transaction.
Prairie was convicted on two counts of distribution, pertaining to the December 2 and December 8,1976 transactions. Prairie now raises four separate grounds for reversal, none of which is persuasive.
II.
Prairie’s first contention is that the government’s conduct in this case is sufficiently outrageous and “shocking to the universal sense of justice” that due process principles bar his conviction.
This defense is, of course, based upon Mr. Justice Rehnquist’s oft-quoted dictum in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). There, the Court held that the defendant’s predisposition rather than the government’s conduct should be the object of scrutiny in considering the applicability of the traditional, non-constitutional defense of entrapment. In so holding, however, the Court commented that it “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . . ” Id.
The Supreme Court again considered this defense in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Despite the lack of a majority opinion, we have read the Hampton opinions as permitting a due process defense based on the outrageous nature of the government’s conduct. United States v. Gonzales, 539 F.2d 1238, 1239 (9th Cir. 1976); United States v. Gonzalez-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). Accord, United States v. Leja, 563 F.2d 244 (6th Cir. 1977); United States v. Reifsteck, 535 F.2d 1030, 1035 (8th Cir. 1976).
The gravamen of Prairie’s claim is that the government employed a prostitute to emotionally and sexually seduce Prairie and thereby persuade him to deal in illicit drugs. This assertion is without merit. The record is clear that Cayton was neither paid nor asked by the agents to establish any particular relationship with Prairie and, in any event, her official role was limited to that of introducing a willing seller of narcotics to a willing purchaser. Moreover, it is clear that the use of paid informants and undercover police officers to ferret out drug dealers is not violative of due process principles. See, e. g., United States v. Gonzalez-Benitez, supra, 537 F.2d at 1055; United States v. Spivey, 508 F.2d 146, 149 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Arias-Diaz, 497 F.2d 165, 169 (5th Cir. 1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).
III.
Prairie also argues that the trial court erred in refusing to give a requested instruction which would have placed the due process defense before the jury. We recently stated:
The question of whether the agents’ actions were a violation of due process was one of law, and properly determined by the district court. Appellant[’s] . contention that the district court erred by failing to submit the question to the jury is therefore without merit.
United States v. Gonzales, supra, 539 F.2d at 1240 n. 1. Accord, United States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976). We adhere to this position.
IV.
Prairie’s next contention is that the trial court erred in refusing to find as a matter of law that Prairie was entrapped.
In United States v. Rangel, 534 F.2d 147 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976), we explained that “[entrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent.” Id. at 149 (emphasis added).
In light of this standard, our review of the entire record leads us to conclude that the entrapment issue was properly presented to the jury. Certainly, Prairie’s own testimony regarding his prior experience in the use and distribution of illegal drugs coupled with the fact that he sold Cayton cocaine before the agents became involved is sufficient evidence to create a jury question on the issue of entrapment.
V.
Prairie’s final contention is that the district judge erred in refusing to admit certain testimony regarding Cayton’s sexual activity and her willingness to exchange sex for illegal drugs. The relevance of the proffered testimony, argues Prairie, is to demonstrate the outrageousness of the government’s conduct and the nature of the alleged entrapment. Our careful review of the entire record leads us to conclude that the error, if any, in refusing to admit the offered testimony was harmless. Fed.R. Crim.P. 52(a).
AFFIRMED.
. These differing concepts of entrapment have been termed, respectively, the “subjective” and “objective” theories of entrapment. By approving the subjective theory, the Court in Russell adhered to the rule announced in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). See United States v. Esquer-Gamez, 550 F.2d 1231, 1233-34 (9th Cir. 1977); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1334-36 (9th Cir. 1977). See generally, The Supreme Court, 1972 Term, 87 Harv.L.Rev. 55, 243-252 (1973).
. We have acknowledged that a criminal defendant may have a due process defense where the government’s conduct is sufficiently outrageous. See, e. g., United States v. Smith, 538 F.2d 1359, 1361 (9th Cir. 1976); United States v. Lue, 498 F.2d 531, 533-34 (9th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974).
. Regardless of how the plurality opinion in Hampton is read, a majority of the Court expressly refused to rule that due process principles could not prevent conviction in a case where, even though the defendant was predisposed to commit the crime, the government’s conduct is sufficiently offensive. 425 U.S. at 495, 96 S.Ct. 1646 (Powell & Blackmun, JJ., concurring in judgment) and id. at 497, 96 S.Ct. 1646 (Brennan, Stewart & Marshall, JJ., dissenting).
. Prairie relies heavily on the contention that the government’s conduct in paying Cayton’s living expenses violated Alaska’s criminal laws concerning prostitution. However, the record is clear that Cayton’s expenses were paid from funds she had earned by testifying in prior drug cases and that the agents were unaware of her daily activities. In any event, even assuming that the government’s actions were illegal, such conduct does not, without more, give rise to a due process defense. Hampton v. United States, supra, 425 U.S. at 490, 96 S.Ct. 1646; United States v. Spivey, supra, 508 F.2d at 149.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
YELLOW CAB CO. OF PHILADELPHIA v. RODGERS et al.
No. 4839.
Circuit Court of Appeals, Third Circuit.
Oct. 25, 1932.
M. Randall Marston and Bernard J. O’Connell, both of Philadelphia, Pa., for appellant.
J. Morris Yeakle and Victor Frey, both of Philadelphia, Pa., for appellee Rodgers.
Frank R. Ambler and Harry S. Ambler, Jr., both of Philadelphia, Pa., for appellee Donaghy.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
THOMPSON, Circuit Judge.
Sarah J. Rodgers, one of the appellees, brought suit in trespass against the appellant, the Yellow Cab Company, in a Philadelphia county court to recover damages for personal injuries sustained by her when a taxicab, in which she was a passenger and which was owned by the appellant,, collided with a truck owned by the other appellee, Fannie P. Donaghy. The suit was removed to the United States District Court on the ground of diversity of citizenship. The appellant then caused a writ of scire facias to be issued under authority of the Pennsylvania Act of April 10, 1929, P. L. 479, as amended by the Act of Juno 22, 1931, P. L. 663 (12 PS § 141 and note), to bring the ap-pellee Fannie P. Donaghy into the case as an additional defendant. The appellant, the original defendant, alleged in the writ that Fannie P. Donaghy was solely liable for the cause of action declared upon and for the whole of the amount which might be recovered against it. At the close of the testimony presented by the plaintiff and the original defendant, the trial court directed a verdict for the additional defendant, and presented the issues between the plaintiff and the original defendant to the jury. The jury returned a verdict in favor of the additional defendant, and a verdict in favor of the plaintiff and against the original defendant. The appeal is from the judgments entered on each of these verdicts.
The sole issue, as between the original defendant and the additional defendant, is whether the trial court was in error in directing a verdict. Condensed, the appellant’s argument is that the jury should have been permitted to find whether the additional defendant on the facts proven was solely liable, jointly liable with the original defendant, severally liable with the original defendant, or liable over to the original defendant. It is true that the 1929 act, as amended by the aet of 1931, permits writs of scire facias to issue on any one of these allegations. It is conceivable that' an original defendant might set forth in a writ of scire facias any or all of thesel grounds for adding a defendant to an action already instituted. The original defendant in this ease, however, chose to restrict its cause of action against the additional defendant to the single allegation that the additional defendant was alone liable. It would be contrary to the ordinary, rules of pleading to conclude that, although the original defendant’s ease was based on the theory of the sole liability of the additional defendant, it might at the trial change its theory to some other form of liability than that pleaded. In Shaw v. Megargee, 307 Pa. 447, 161 A. 546, the Supreme Court of Pennsylvania did not deem an allegation of sole liability interchangeable with allegations of joint and several liability or liability over. See, also, the decision of this court of October 24,1932, in Yellow Cab Company of Philadelphia v. Graham and Smythe, 61 F.(2d) 666. In Shapiro v. Philadelphia, 306 Pa. 216, 159 A. 29, 30, cited by the appellant, the Supreme Court of Pennsylvania by inference recognized the right of the trial court to direct a verdict for the additional defendant when it said: “In this, as in all other cases within the purview of the act of 1929', the trial court should allow the city to offer evidence to show that the transit company was liable (primarily, jointly, or, since the amendment of 1931 * * * solely) for the tort complained of, before entering a nonsuit or directing a verdict in favor of the transit company.”
In our judgment, the trial court rightly held that, as the original defendant had not made out a prima facie case of sole liability on tho part of the additional defendant, it was the duty of then court to direct a verdict in favor of the additional defendant. Barrett v. Virginian Railway Company, 250 U. S. 473, 39 S. Ct. 540, 63 L. Ed. 1092.
Upon trial, the original defendant called as its witness the driver of the taxicab who testified that he was following a trolley car going east on Lancaster avenue, a two-way street, and that, when tho trolley car stopped at Forty-Sixth street, he attempted to pass it on the left-hand side; In doing so, the original defendant violated the Motor Vehicle Laws of Pennsylvania and particularly section 1017 of the Act of May 1, 1929, P. L. 981 (75 PS § 592), which reads, as follows: “The driver of a vehicle shall not overtake and pass upon the left, any interurban or street car proceeding in the same direction, whether actually in motion or temporarily at rest, when a travelable portion of the highway exists to the right of such street ear, even though such portion of tho highway is occupied or obstructed.”
The original defendant was bound by the testimony of its own witness. This evidence showed that the original defendant was negligent, and that therefore the additional defendant could not have been solely liable as asserted by the original defendant in its pleading.
We need not here consider whether the act of 1931 malees it necessary for tho trial court to submit the case between the plaintiff and the additional defendant to the jury, since the plaintiff does not complain of the action of the trial court in directing a verdict for the additional defendant.
Of the several assignments of error relating to the conduct of tho cause between tho original defendant and the plaintiff, the only one which we deem necessary to discuss is the contention that the verdict was so grossly excessive as to require a new trial. The physician, who treated the plaintiff immediately after her discharge from the hospital, testified: “On examination I found she had a cerebral concussion of tho brain, a contusion of the head, lacerations of the scalp and face; sprain of the right shoulder; sprain of the muscles of the neck; fracture of the left forearm; contusion of the right arm and both hands; sprain of the right wrist, sprain of the back — back of the right thigh, with a hematoma, — that is a blood tumor, contusions of both knees, with bursitis of both knees.”
There was evidence from which the jury could find that the plaintiff was confined to bed for five weeks and to her room for the following four weeks, and that it was necessary to assist her up and down stairs for several weeks thereafter. At tho time of tho trial, two years after the accident, her knees still required treatment. The medical prognosis was that the condition of both knees would become progressively worse. The plaintiff, a widow fifty-eight years of age, was shown to have been active and healthy prior to the accident. She performed all the household duties for her family, consisting of a son, a daughter, and two grandchildren. After tho accident she became dependent on others for assistance. Although the verdict was decidedly a liberal one, we are not convinced that it was so grossly excessive as to shock the conscience of the court.- As was said in Martin v. Letter, 282 Pa. 286, 290, 127 A. 839, 840: “Tho question is not whether as jurors we would have found a smaller verdict, or as a trial court would have compelled its reduction, but whether it is so grossly excessive as to warrant our interference, under the exceptional power given us by the Act of May 20, 1891, P. L. 101 (12 PS §§ 3100, 1164). In reference to this act, Mr. Justice Frazer, speaking for the court, in Scott, Adm’x, v. American Express Co., 257 Pa. 25, 31, 101 A. 96, 98, says: ‘We have repeatedly said that the question of the amount of the verdict would be reviewed only in eases whore so grossly excessive as to shock our sense of justice, and where the impropriety of allowing a verdict to stand is so manifest as to show a clear abuse of discretion on the part of the court below in refusing to set it aside/ To like effect is Gail v. Phila., 273 Pa. 275, 117 A. 69, and many other cases. Under the rule as above stated, this is not such a ease as to warrant our interference, and, in view of our very recent decision in Potts v. Guthrie, 282 Pa. 200, 127 A. 605, * * * further discussion seems unnecessary.”
The remaining assignments of error do not present any substantial grounds for reversal.
Judgments affirmed.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GEORGE v. HUMPHREY, Secretary of Treasury et al.
No. 11813.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 10, 1953.
Decided Dec. 10, 1953.
Mr. James Craig Peacock, Washington, D. C., with whom Messrs. John H. Myers and Martin W. Meyer, Washington, D. C., were on the brief, for appellant.
Mr. Ralph A. Barney, Atty., Dept. of Justice, Oklahoma City, Okl., for appellees.
Before EDGERTON, CLARK and WILBUR K. MILLER, Circuit Judges.
PER CURIAM.
Appellant, a member of the Angoon unit of Duk-la-wedi Indians in Alaska, filed a complaint on behalf of all the unit to recover money “received by the United States from the sale of timber . which receipts, in accordance with [a Joint Resolution of August 8, 1947, 61 Stat. 920] either are or should be maintained in a special account in the Treasury until the rights to the timber are finally determined.” The complaint alleges that the Angoon Indians owned the timberland and the timber. The District Court rightly dismissed the complaint as being in effect a suit against the United States. The United States has not consented to be sued on such a claim in the District Court.
Affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
MASSEY-HARRIS CO. v. GILL.
No. 725.
Circuit Court of Appeals, Tenth Circuit.
March 30, 1933.
Robert Burns, Paul N. Lindsey; and Owen & Looney, all of Oklahoma City, Okl., for appellant.
Claude Nowlin, of Oklahoma City, Okl. (John R. Guyer and Nowlin, Spielman & Thomas, all of Oklahoma City, Okl., on the brief), for appellee.
Before COTTERAL and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.
COTTERAL, Circuit Judge.
The Massey-Harris Company appeals from a judgment in favor of George A. Gill, in a suit he brought to recover damages sustained when a tractor owned by the company ran upon and injured him.
It was specified in thé petition that the defendant, a manufacturer of farm machinery, was demonstrating its tractors during a tractor show at Wichita, Kan., to a large number of persons, including the plaintiff; that the defendant left one of the tractors in gear and unguarded, and some one, either an employee of the company or a bystander, pressed the starter button, which caused it to run into and upon the plaintiff and produce the injuries.
At the close of the evidence, the plaintiff was allowed to amend his petition to conform to the proof by alleging that the tractor was left standing in the street, with a rear wheel upon a block of wood, facing defendant’s warehouse; that two employees were left to guard the tractor; that an employee of the company set the motor running, and that the danger of its being started by some one pulling the levers was fully realized by defendant; that the defendant knew and appreeiat-ed the danger; that the employees failed to take any care or caution against the starting of the tractor, and by their negligence it moved forward, ran over the sidewalk and into the building, where plaintiff was struck and injured. The defense was a denial of negligence, and further that the injury, if any, was due to plaintiff’s contributory negligence.
The ease was tried to a jury. The defendant interposed a motion to direct a verdict in its favor, and assigns as errors the denial of that motion and the rendition of judgment.
The theory of the defendant was that, in order to recover, the plaintiff was required to show the tractor was a dangerous instrumentality, as he failed to show that any of defondant’s employees started the tractor in motion and thereby caused the injury to the plaintiff. Many authorities are cited to show a motor vehicle is not a dang-erous instrumentality, among them a ease decided by this court. Woody v. Utah Power & Light Co., 54 F.(2d) 220. It is more accurate to say that a motor vehicle is not inherently, but only potentially, such an instrumentality. District of Columbia v. Colts, 282 U. S. 63, 51 S. Ct. 52, 75 L. Ed. 177. But wo find the question quite unnecessary and unimportant in this case, as the evidence shows the defendant left the tractor in the control of its employees, and their acts, attributable to the defendant, showed a want of ordinary precaution to avert the injury.
The demonstration was put on to a crowd of invitees. The defendant’s employees Straight and Turner were left in charge of the tractor. Straight placed it in position with a rear wheel on a block of wood. Hampton, one of defendant’s service men, started the motor, left it unattended, and faced away from it when it moved. Straight testified that any person in the crowd behind the tractor could have taken hold of the levers and started the tractor; that he did not watch that crowd, knew the engine was in motion, and by starting might injure bystanders; that he realized it would be very dangerous to let the tractor run through the crowd; that it was his duty to prevent that, and he had been guarding it, and particularly at the rear of the machine, but his attention was diverted by a man who spoke to him, and he turned his back to the machine.
Turner, another of defendant’s service men, testified he saw Hampton start the motor; that the starter button had been pressed shortly before the tractor started and ran across the sidewalk into the building; that any person at the back of the tractor could easily reach and handle the gears; tha-t he was talking to a customer when it started; that, as lie saw Hampton, a competent man, was in charge, he paid no further attention to it. Hampton also testified the tractor had a self-starting device, starting the motor on the battery by pressing the button, and, when the tractor started moving, it automatically transferred to magneto. He stated that he relied on Straight and Turner to see that nothing happened to start the tractor into the erowd. The plaintiff was an invited guest, and was in the act of shaking hands with some representative of the defendant when the tractor rail upon him.
Wo think that the demonstration of. the tractor called for the performance of a duty on defendant’s part to guard against injury to those assembled about it, and that, if the omission of that duty resulted in the plaintiff’s injury, it was a case of actionable negligence. Chicago, R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134 P. 876; Coast S. S. Co. v. Brady (C. C. A.) 8 F.(2d) 16. The defendant appreciated the danger by placing its agents as guards over the tractor. But they were remiss in the exercise of their duties, and permitted their attention to be diverted, when the tractor was caused by some one to run to the place of injury. The defendant was responsible for their omission of duty. The jury was well justified in finding there was negligence on their part, and this was the proximate cause of the accident. There was no evidence of contributory negligence on plaintiff’s part.
The trial court properly charged the jury that, in order for the plaintiff to recover, it must find that defendant’s negligence was the proximate cause of plaintiff’s injuries, that they were the natural and probable result, and that they ought to have been foreseen by the defendant in the exercise of the care a reasonable and prudent man would exercise, in the light of all the surrounding circumstances. Stanolind Oil & Gas Co. v. Brown (C. C. A.) 62 F.(2d) 398; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U. S. 249, 26 L. Ed. 1070; Snider v. Sand Springs Ry. Co. (C. C. A.) 62 F.(2d) 635.
The case was one for the jury. The defendant was not entitled to a peremptory instruction. Finding no error in the record, the judgment in this case is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
sc_lcdispositiondirection
|
B
|
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
PAUL, DIRECTOR OF AGRICULTURE OF CALIFORNIA, et al. v. UNITED STATES.
No. 19.
Argued October 17-18, 1962. —
Decided January 14, 1963.
John Fourt, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were Stanley Mosk, Attorney General, Lawrence E. Doxsee, Deputy Attorney General, and Roger Kent.
Solicitor General Cox argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Guilfoyle and Alan S. Rosenthal.
Briefs of amici curiae, urging reversal, were filed for the State of Mississippi by Joe T. Patterson, Attorney General; for the State of Nevada by Charles E. Springer, Attorney General, and Louis Mead Dixon, Special Deputy Attorney General; for the State of Oregon by Robert Y. Thornton, Attorney General, and Don Parker, Assistant Attorney General; for Consolidated Milk Producers of San Francisco, Inc., by Gerald D. Marcus; for the Dairy Institute of California et al. by Emil Steck, Jr., Thomas G. Baggot and Jesse E. Baskette; for Petaluma Cooperative Creamery by Joseph A. Rattigan; and for the Protected Milk Producers Association of Paramount, California, et al. by George E. Atkinson, Jr.
Mr. Justice Douglas
delivered the opinion of the Court.
The main question in this case is whether California can enforce her minimum wholesale price regulations as respects milk sold to the United States at three military installations (Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal) located within California and used for strictly military consumption, for resale at federal commissaries and for consumption or resale at various military clubs and post exchanges. Milk used for the first two categories of use is paid for with appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State’s minimum price regulations were applicable to sales at Travis. Subsequently bids for milk-supply contracts at Travis were in strict compliance with California’s regulations, the added cost to the Federal Government being about $15,000 a month. Later that year California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States. It also alleged that such regulation was an unconstitutional burden on the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage a federal enclave. The complaint asked that a three-judge court be convened.
Meanwhile, the Director of Agriculture of California warned distributors that the California regulation would be enforced at Castle and at Oakland. Bids for milk thereafter received at Castle were all at or above the state minimum price; and accordingly they were rejected. A new invitation for bids was issued, and one of those received was below the state minimum. Thereupon California sued the successful bidder for an injunction; and later it sued other like bidders. A similar experience was had at Oakland; bids at or above the minimum were rejected, and a contract with a distributor for a prior period was extended for three months with an estimated saving to the United States of over $30,000. California again instituted suit to enjoin the supplier from selling at below established minimum wholesale prices. The United States amended its complaint to include its purchases at Castle. As respects Oakland the United States commenced a separate action by a complaint substantially identical with the other one; and they were later consolidated.
Appellants denied that these three installations were federal enclaves giving the United States exclusive jurisdiction and that there was any conflict between the state regulatory scheme and the federal procurement policy. Appellants also moved that the District Court stay these actions pending determination of state-law questions by the state courts in the pending actions.
The three-judge District Court refused to stay the proceedings and granted the motion of the United States for summary judgment. 190 F. Supp. 645.. We postponed a determination of jurisdiction to the merits. 368 U. S. 965.
Here, as in United States v. Georgia Public Service Comm’n, post, p. 285, decided this day, the suit was one “required” to be heard by a three-judge court within the meaning of 28 U. S. C. § 1253 and therefore properly brought here by direct appeal. Apart from the question whether the three federal areas were subject to the exclusive jurisdiction of the United States, the issue as to whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question, as Penn Dairies, Inc., v. Milk Comm’n, 318 U. S. 261, Public Utilities Comm’n of California v. United States, 355 U. S. 534, and United States v. Georgia Public Service Comm’n, supra, make clear. A three-judge court was therefore required even if other issues that might not pass muster on their own were also tendered. See 28 U. S. C. § 2281; Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U. S. 73.
II.
The California Act authorizes the Director of Agriculture to prescribe minimum wholesale and retail prices “at which fluid milk or fluid cream shall be sold by distributors to retail stores, restaurants, confectioneries and other places for consumption on the premises.” The prohibitions run both against sales and against purchases; and both criminal and civil penalties are provided. The minimum wholesale prices, promulgated by the Director of Agriculture, have been enforced with respect to sales to the United States, as already noted.
In Public Utilities Comm’n of California v. United States, supra, we held that the federal procurement policy, which required competitive bidding as the general rule and negotiated purchase or contract as the exception, prevailed over California’s regulated rate system. That case, like United States v. Georgia Public Service Comm’n, supra, concerned transportation of commodities. But the federal policy at the times relevant here was the same for procurement of supplies and services. The statutes in effect at the time of the Public Utilities Comm’n of California case are still the basic provisions governing all procurement by the Armed Services out of appropriated funds. They require that contracts be placed by competitive bidding, the award to be granted “to the responsible bidder whose bid... will be the most advantageous to the United States, price and other factors considered.” There are statutory exceptions, the relevant ones being as follows:
“(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. If use of such method is not feasible and practicable, the head of an agency, subject to the requirements for determinations and findings in section 2310, may negotiate such a purchase or contract, if—
“(8) the purchase or contract is for property for authorized resale ;
“(9) the purchase or contract is for perishable or nonperishable subsistence supplies;
“(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
“(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier.”
The Armed Services Procurement Regulation speaks in unambiguous terms of a policy “to use that method of procurement which will be most advantageous to the Government — price, quality, and other factors considered.” The Regulation states, “Such procurement shall be made on a competitive basis, whether by formal advertising or by negotiation, to the maximum practicable extent....” Whatever method is used — formal advertising or negotiation — “competitive proposals” must be “solicited from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure such full and free competition as... to obtain for the Govérnment the most advantageous contract — • price, quality, and other factors considered.” If advertising for bids is used, the contract is to be awarded “to the lowest responsible bidder.” Moreover, even when advertising for bids is not used, competitive standards are not relaxed. The policy is “to procure supplies and services from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate over-all cost to the Government.” “The fact that a procurement is to be negotiated does not relax the requirements for competition.” “Whenever supplies... are to be procured by negotiation, price quotations... shall be solicited from all such qualified sources of supplies or services as are deemed necessary... to assure full and free competition... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” The Regulation then specifies 20 separate considerations for the selection of a supplier in case of a negotiated procurement. The first of these is a “comparison of prices quoted.”
We have said enough to show that the Regulation does more than authorize procurement officers to negotiate for lower rates. It directs that negotiations or, wherever possible, advertising for bids shall reflect active competition so that the United States may receive the most advantageous contract.
While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because “it is impracticable to obtain competition,” to use the statutory words, it is the state agency, not the federal procurement officer and the seller, that determines the price provisions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm’n of California v. United States, supra. In that case we said that the Regulation then existing, which was promulgated under the same Act here involved, “sanction[ed] the policy of negotiating rates for shipment of federal property and entrust [ed] the procurement officers with the discretion to determine when existing rates'will be accepted and when negotiation for lower rates will be undertaken.” 355 U. S., at 542-543.
Penn Dairies, Inc., v. Milk Control Comm’n, supra, is not opposed. As we noted in United States v. Georgia Public Service Comm’n, supra, Congress, after the Penn Dairies decision and before Public Utilities Comm’n of California v. United States, revised and restated the federal procurement policy. As stated in the House Report, “... the bill represents a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments. It holds to the time-tested method of competitive bidding. At the same time it puts within the framework of one law almost a century’s accumulation of statutes and incorporates new safeguards designed to eliminate abuses, assures the Government of fair and reasonable prices for the supplies and services procured and affords an equal opportunity to all suppliers to compete for and share in the Government’s business.”
The Regulation controlling the Penn Dairies decision stated, as does the present Act, that supplies might be purchased on the open market where it is “impracticable to secure competition.” 318 U. S., at 277. But, unlike the present Regulation, the earlier one declared that such a situation arose “when the price is fixed by federal, state, municipal or other competent legal authority.” Ibid. The earlier Regulation further stated that federal procurement officers should not require suppliers to comply with state price-fixing laws before it was judicially determined whether the latter were applicable to government contracts (id., at 276), a provision which the Court said manifested a federal “hands off” policy-respecting minimum price laws of the States. Id,., at 278.
The present Regulation makes no such allowances, contains no such qualifications, and provides for no such exception. Its unqualified command is that purchases for the Armed Services be made on a competitive basis; and it has, of course, the force of law. Public Utilities Comm’n of California v. United States, supra, at 542-543. California’s price-fixing policy for milk is as opposed to this federal procurement policy as was California’s rate-making policy in Public Utilities Comm’n of California v. United States, supra.
Policy-wise, it might be better if state price-fixing systems were honored by federal procurement officials. It is urged that if that were done substandard producers of some suppliers would lose the advantage they may enjoy in competitive bidding. Congress could of course write that requirement into the law. Congress has written into the Act certain provisions of that character. It has required that contractors or manufacturers pay not less than the minimum wage as determined by the Secretary of Labor to be the prevailing wage; that building contractors pay such minimum wages to laborers and mechanics; and that no laborer or mechanic doing any work for contractors and subcontractors on government contracts shall be required or permitted to work more than eight hours a day, unless one and a half times the basic rate is paid for overtime. The inclusion of these provisions, aimed as they are at substandard working conditions, shows that Congress has been alert to the problem. Their inclusion makes more eloquent the omission of any like requirement as respects prices or rates fixed by state law.
It is argued that the Act of September 10, 1962, 76 Stat. 528, changed the situation. California points to § 2306 (f), which requires contractors to submit cost or pricing data for any negotiated contract, but goes on to lift that requirement where “prices [are] set by law or regulation.” But this provision does not say, even equivocally, that federal procurement officers must abandon competitive bidding where prices are “set by law or regulation.” The Regulation makes competitive bidding the rule, as we have seen. Section 2306 (f) only provides for waiver of “cost or pricing data” under certain kinds of negotiated contracts if the prices of some commodities included in the contract have been “set by law or regulation.” That is to say, as, if, and when the procurement officer is authorized to accept prices “set by law or regulation,” he need not follow the requirements of § 2306 (f) concerning “cost or pricing data.”
California cites but builds no argument around § 2304 (g), also added in 1962. It is now suggested for the first time that § 2304 (g) requires federal procurement to follow state rate-fixing and state price-fixing. It provides in relevant part:
“In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which Jime of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered....”
Here again, the new statutory provision does not purport to say when rates or prices “fixed by law or regulation” govern federal procurement. At the time § 2304 (g) was added to the Act, the Regulation which we have discussed at length was in full force. That Regulation, unlike the one in Penn Dairies, eliminated the earlier provisions which had been construed to manifest a federal “hands off” policy respecting minimum price laws of the States. 318 U. S., at 278. The Regulation in force when this litigation started and in force when the 1962 Act was passed provides unequivocally for competitive bidding “to the maximum practicable extent,” as we have noted. That might well permit procurement officers under some circumstances to purchase at state-fixed prices. But competitive bidding is the rule, not the exception. There is not a word in the legislative history of the 1962 Act which indicates a congressional policy to uproot the Regulation or to change it. It was, indeed, repeatedly approved. See S. Rep. No. 1884, 87th Cong., 2d Sess.; H. R. Rep. No. 1638, 87th Cong., 2d Sess., Parts I and II; Cong. Rec., June 7, 1962, p. 9231 et seg. Four years before the 1962 Act was passed California Comm’n had held that state regulations cannot preclude the Federal Government from negotiating lower rates. This result was not once questioned in the legislative history of the 1962 Act, even though the instant case was being litigated during this entire period. That Act only reflects an effort to provide collateral accommodations as, if, and when federal procurement follows state price-fixing. The mandate of 10 U. S. C. § 2305 (a) is still unequivocal; and the statutory exceptions to competitive bidding contained in § 2304 (a), discussed above, remain unchanged.
The 1962 Act fails to show a congressional purpose to abandon competitive bidding. On the contrary the purpose, as stated in S. Rep. No. 1884, 87th Cong., 2d Sess., was to increase the efficacy of the competitive bidding system then in force.
Not only was the existing Regulation cited repeatedly with approval, but the aim of the Act was described in unambiguous terms:
“In general, the objectives of the changes are—
“(1) To encourage more effort to accomplish procurements by formal advertising;
“(2) To require a clearer justification before certain authorities to negotiate contracts are used;
“(3) To obtain more competition in negotiated procurement;
“(4) To provide safeguards for the Government against inflated cost estimates in negotiated contracts.” Id., p. 1.
The House received an equally unambiguous explanation from the floor manager of the bill:
“[TJhis bill... has for its chief purpose, an increase in competitive purchasing.... [OJnly 13 percent of purchasing is now done by sealed competitive bidding. That is clearly not enough. Competition must be increased; competition must be had even in negotiated purchasing; and all negotiated purchasing must be further reduced.” Cong. Rec., June 7, 1962, p. 9234.
If there had been a desire to make federal procurement policy bow to state price-fixing in face of the contrary policy expressed in the Regulation, we can only believe that the objectives of the Act would have been differently stated. In sum, the references to rates or prices “fixed by law or regulation” are merely minor collateral accommodations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement official decides that the practical way to obtain the supplies or services is by following the state price-fixing or rate-fixing system.
California, however, says that whatever may be the federal policy as to purchases of milk for mess-hall use, purchases of milk for resale at federal commissaries stand on a different footing. These commissaries are “arms of the Government deemed by it essential for the performance of governmental functions” and “partake of whatever immunities” the Armed Services “may have under the Constitution and federal statutes.” Cf. Standard Oil Co. v. Johnson, 316 U. S. 481, 485. Purchases for resale at these federal commissaries are made from appropriated funds; and the procurement officers act under the same Regulation when they purchase milk for the commissaries as they do when they purchase it for mess-hall use. California points out, however, that the federal statute provides that where commodities are purchased for resale, they may be procured by negotiation rather than by formal advertising — a provision we have quoted above and which was written into the law because purchases for commissaries “are generally not made by specifications but by brand names.” Milk, however, does not fit the category of commodities for which that exception was designed. Moreover, the statutory exception to formal advertising is merely permissive; the procurement officer “may” negotiate for articles to be resold but he is not required so to do. He is free to purchase by formal advertising from the responsible bidder whose bid “will be the most advantageous to the United States.” Whether he negotiates milk contracts or uses competitive bidding is made dependent by the federal statute on his informed discretion, not on state price-fixing policies. Moreover, as, if, and when he negotiates, the Regulation, as already-noted, requires price quotations “from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure full and free competition... to the end that the procurement will be made to the best advantage of the Government, price and other factors considered.” And, to repeat, the procurement officer when he negotiates is controlled by 20 separate factors, one of which is “comparison of prices quoted,” and none of which relates in any manner whatsoever to the price-fixing policies of a State.
The fact that the cost of products sold at commissaries benefits commissary purchasers does not make the commissary any the less a federal agency. Cf. Standard Oil Co. v. Johnson, supra. Congress authorizes the payment for commissary supplies from appropriated funds. The federal statutes dealing with procurement policies expressly make them applicable to all purchases “for which payment is to be made from appropriated funds.” Congress, to be sure, has provided that commissaries may not use any appropriated funds “unless the Secretary of Defense has certified that items normally procured from commissary stores are not otherwise available at a reasonable distance and a reasonable price in satisfactory quality and quantity to the military and civilian employees of the Department of Defense.” Here again, however, the question of what is a “reasonable price” is left to the discretion of a federal officer. Congress has not directed that commissaries be removed from the purview of federal procurement policies; nor has it adopted state price-fixing policies as federal policies when it comes to purchases for commissaries or otherwise.
III.
What we have said would dispose of the entire case but for the fact that some of the milk was purchased out of nonappropriated funds for use in military clubs and for resale at post exchanges. This brings us to the question whether Congress has power to exercise “exclusive legislation” over these enclaves within the meaning of Art. I, § 8, cl. 17, of the Constitution, which reads in relevant part: “The Congress shall have Power... To exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia and “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
The power of Congress over federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia. The cases make clear that the grant of “exclusive” legislative power to Congress over enclaves that meet the requirements of Art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action. The question was squarely presented in Pacific Coast Dairy v. Department of Agriculture, 318 U. S. 285, which involved, as does the present litigation, California’s Act and an attempt to fix the prices at which milk could be sold at Moffett Field. We held that “sales consummated within the enclave cannot be regulated” by California because of the constitutional grant of “exclusive legislation” respecting lands purchased by the United States with the consent of the State {id., at 294), even though there was no conflicting federal Regulation.
Thus the first question here is whether the three enclaves in question were “purchased by the Consent of the Legislature” of California within the meaning of Art. I, § 8, cl. 17.
The power of the Federal Government to acquire land within a State by purchase or by condemnation without the consent of the State is well established. Kohl v. United States, 91 U. S. 367, 371. But without the State’s “consent” the United States does not obtain the benefits of Art. I, § 8, cl. 17, its possession being simply that of an ordinary proprietor. James v. Dravo Contracting Co., 302 U. S. 134, 141-142. In that event, however, it was held in Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 541, 542, that a State could complete the “exclusive” jurisdiction of the Federal Government over such an enclave by “a cession of legislative authority and political jurisdiction.”
Thus if the United States acquires with the “consent” of the state legislature land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Art. I, § 8, cl. 17, or if the land is acquired without such consent and later the State gives its “consent,” the jurisdiction of the Federal Government becomes “exclusive.” Since 1940 Congress has required the United. States to assent to the transfer of jurisdiction over the property, however it may be acquired. In either event — whether the land is acquired by purchase or condemnation on the one hand or by cession on the other — a State may condition its “consent” upon its retention of jurisdiction over the lands consistent with the federal use. James v. Dravo Contracting Co., supra, 146-149. Moreover, as stated in Stewart & Co. v. Sadrakula, 309 U. S. 94, 99-100:
“The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights.”
California has had several statutory provisions relevant to our problem under Art. I, § 8, cl. 17. One pertained to acquisition of land by the United States through “purchase or condemnation.” Another concerned land “ceded or granted” by California to the United States.
Those provisions were codified in 1943, acquisitions by “purchase or condemnation” appearing in one section and acquisitions by cession in another. Another section of the codification, after stating that California “cedes” to the United States “exclusive jurisdiction” over all lands “held, occupied, or reserved” by the United States “for military purposes or defense,” provides that a description of the land by metes and bounds and a map or plat of the land “shall first be filed in the proper office of record in the county in which the lands are situated.”
Most of the transactions creating these three federal enclaves took place between 1942 and 1944, some in 1946 and some even later.
Whether the United States has acquired exclusive jurisdiction over a federal enclave is a federal question. As stated in Silas Mason Co. v. Tax Commission, 302 U. S. 186, 197:
“The question of exclusive territorial jurisdiction is distinct. That question assumes the absence of any interference with the exercise of the functions of the Federal Government and is whether the United States has acquired exclusive legislative authority so as to debar the State from exercising any legislative authority, including its taxing and police power, in relation to the property and activities of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise.... In this instance, the Supreme Court of Washington has held that the State has not yielded exclusive legislative authority to the Federal Government.... That question, however, involving the extent of the jurisdiction of the United States, is necessarily a federal question.”
As already noted, a California statute “cedes to the United States exclusive jurisdiction” over described lands provided a description of the metes and bounds and a map of the land first be filed. California earnestly argues that “cedes” in that context includes “purchases” and “acquisitions by condemnation.” But the California statutes have consistently drawn the line between acquisitions by cession on the one hand and all other acquisitions on the other. That is the gist of a recent opinion of the Attorney General of California, in which he treats an acquisition by cession as an alternative to acquisition in other ways and rules that when the acquisition is by means other than cession no map of the land need first be filed. That seems to us to be the fair meaning of the statutory provisions.
The conditions expressed in the California Acts, by which California consented to “the purchase or condemnation” of land by the United States for the prescribed purposes, do not undertake to make applicable to the federal enclaves all future laws of California. Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws. See Stewart & Co. v. Sadrakula, supra; Arlington Hotel v. Fant, 278 U. S. 439. If the price-control laws California is now seeking to apply to sales on federal enclaves were not in effect when the United States acquired these lands, the case is on all fours with Pacific Coast Dairy v. Department of Agriculture, supra. There the Court held that the California statutes under which some of the present acquisitions were made granted the United States exclusive jurisdiction over the tracts in question in spite of the express conditions therein contained (id., at 293) and that this price-control law was not enforceable on a federal enclave in California because it was adopted “long after the transfer of sovereignty.” 318 U. S., at 294. The United States seeks shelter under that rule, saying California is trying to enforce its current regulatory scheme, not the price regulations in effect when the purchases were made. Yet if there were price control of milk at the time of the acquisition and the same basic scheme has been in effect since that time, we fail to see why the current one, albeit in the form of different regulations, would not reach those purchases and sales of milk on the federal enclave made from nonappropriated funds. Congress could provide otherwise and has done so as respects purchases and sales of milk from appropriated funds. But since there is no conflicting federal policy concerning purchases and sales from nonappropriated funds, we conclude that the current price controls over milk are applicable to these sales, provided the basic state law authorizing such control has been in effect since the times of these various acquisitions. A remand will be necessary to resolve that question, as the present record does not show the precise evolution of the present regulatory scheme.
There also remains another uncertainty concerning the purchases and sales of milk out of nonappropriated funds. There is a dispute over where some of these sales are made. Each of the three enclaves has numerous units acquired at various times, some of which may be subject to “exclusive” federal jurisdiction and some of which may not be. California earnestly claims that some sales out of nonappropriated funds were made on units of land over which the United States does not have “exclusive” jurisdiction. She makes the claim as respects some milk used at Travis, some at Castle, and some at Oakland.
We do not resolve the question but vacate the judgment of the District Court insofar as it relates to purchases and sales of milk made from nonappropriated funds and remand the case to the District Court to determine whether at the respective times when the various tracts in question were acquired California’s basic price-control law as respects milk was in effect. If so, judgment on this class of purchases and sales should be for appellants. If not, then the District Court must make particularized findings as to where the purchases and sales of milk from nonappropriated funds are made and whether or not those tracts are areas over which the United States has “exclusive” jurisdiction within the meaning of Art. I, § 8, cl. 17 of the Constitution.
Moreover, the decree must be modified to reflect the change in federal procurement policy as respects producers, already noted.
Accordingly the judgment is affirmed in part and in part vacated and remanded.
It is so ordered.
The United States has abandoned a further claim that California cannot constitutionally enforce her price regulations against producers with respect to milk sold to distributors for processing and ultimately resold to the United States. The abandonment of this claim is not a confession of error but only a decision not to assert immunity from that price control as a matter of procurement policy.
It appears that while California has authorized her Director of Agriculture to establish minimum wholesale prices for both “fluid milk” and “fluid cream,” and that while the Director has done so for a marketing area encompassing another base, all of the minimum wholesale price regulations appearing in the record pertain only to “fluid milk.”
In view of these facts, the case now involves only California’s power to enforce her minimum wholesale prices for “fluid milk” with respect to sales to the United States at the three bases involved.
Article I, § 8, el. 17, of the Constitution gives Congress power “To exercise exclusive Legislation... 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.”
Calif. Agr. Code, § 4350.
Md., §4352.
Id., § 4361.
Id., §4410.
10 U. S. C. §2305 (c). This statute is a recodifieation without substantial change of the Armed Services Procurement Act of 1947. See S. Rep. No. 2484, 84th Cong., 2d Sess. 19, 20-21.
Id., §2304 (a) (8) (9) (10) (15).
Armed Services Procurement Regulation (revised to April 20, 1959), ¶1-301.
Ibid.
Id., ¶ 1-302.2.
Id., ¶ 1-301.
Id., ¶3-801.1.
Id., ¶3-101 (a) (Army Procurement Procedure).
Id., ¶ 3-101.
Ibid.
Ibid.
10 U. S. C. §2304 (a) (10).
H. R. Rep. No. 109, 80th Cong., 1st Sess. 6.
Section 2304 (f), which incorporates the Walsh-Healey Act (41 U. S. C. §§35-45), the Davis-Bacon Act (40 U. S. C. §276a), and the Eight Hour Law (40 U. S. C. §§ 324,
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Michelle OLIVER et al., Plaintiffs-Appellees, v. KALAMAZOO BOARD OF EDUCATION et al., Defendants-Appellees, State Board of Education et al., Defendants-Appellants.
No. 80-1006.
United States Court of Appeals, Sixth Circuit.
Argued June 19, 1980.
Decided Dec. 15, 1980.
Arthur Staton, Jr., Ford, Kriekard, Sta-ton, Allen & Decker, Kalamazoo, Mich., for defendants-appellees Kalamazoo Bd. of Ed. et al.
Michael H. Jackson, Denver, Colo., Louis R. Lucas, Memphis, Tenn., Robert A. Derengoski, Sol. Gen., Frank J. Kelley, Atty. Gen. of Mich., Richard P. Gartner, Asst. Atty. Gen., Lansing, Mich., for defendants-appellants State Bd. of Ed. et al.
Stuart J. Dunnings, Jr., Dunnings & Canaday, Lansing, Mich., Nathaniel R. Jones, Gen. Counsel, NAACP, Thomas Atkins, NAACP Special Contribution Fund, New York City, Duane Elston, Detroit, Mich., for plaintiffs-appellees.
James A. White, Foster, Swift, Collins & Coey, Lansing, Mich., for intervenors.
Samuel J. Flanagan, Jr., Brian K. Lands-berg, Dept, of Justice, Washington, D. C., James S. Brady, U. S. Atty., Grand Rapids, Mich., for U. S. intervenors.
Before ENGEL and BROWN, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
The issue raised in this appeal by appellant, Kalamazoo Board of Education, was decided this day in an appeal by the Michigan State Board of Education in No. 79-1723. An issue there and the issue here is whether the district court erred in ordering implementation of recommendations in the Green-Cohen report with respect to the Kalamazoo school system. The panel in No. 79-1723, Weick and Brown, JJ. and Peck, Senior Judge, decided that the district judge did err in so ordering the implementation of such recommendations, and the order was vacated and the case was remanded. Since this panel agrees that the order vacating and remanding the order of the district court in No. 79-1723 is correct and agrees with the reasons stated therefor, this panel adopts the opinion in No. 79-1723 insofar as it relates to the issue presented here.
The order of the district court is therefore vacated and the case is remanded.
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_summary
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FOX v. CAPITAL CO. et al.
No. 6472.
Circuit Court of Appeals, Third Circuit.
April 25, 1938.
Daniel G. Rosenblatt and Murry C. Becker, both of New York City, and Cole & Cole, of Atlantic City, N. J., for appellant Eva Fox.
Walter Hanstein, of Atlantic City, N. J., for appellees Capital Co. and Chicago Title & Trust Co.
Wm. Elmer Brown, Jr., of Atlantic City, N. J., for appellee Hiram Steelman, trustee in bankruptcy for William Fox.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the proceedings under 21a of the Bankruptcy Act, 11 U.S.C.A. § 44(a), in the Matter of William Fox, bankrupt, Eva Fox, the appellant, appeared in the referee’s court, in obedience to a subpoena, on August 25, 1936, and after testifying for some time, “she practically went to pieces mentally and physically,” lost her voice, and was apparently a mental and physical wreck. She was excused, with direction by the referee to appear the following day to testify-
That night of the 25th, Dr. William W. Hersohn, of Atlantic City, N. J., who had been attending Mrs. Fox for over a year, examined her and wrote a certificate to be presented to the court the following day, in which he said:
“Although she is not a healthy woman, I 'have never seen her look like I found her this evening at six o’clock when I received an urgent call to attend her. She was seriously upset mentally, extremely nervous, and complaining of great intensity of her symptoms. I solicited the information that she practically went to pieces mentally and physically, while in court today. She was especially upset over the fact that she couldn’t understand why she would have a rapid pounding heart, a thumping in the chest, hoarseness, and inability to understand or answer simple questions.
“Her physical condition is the complete answer to this.”
He closed the certificate by saying: “May I ask, as a physician interested in the welfare of his patient, that Mrs. Fox be excused from further testimony, until such time that her physical condition so warrants. To compel her to appear for examination at this time wduld likely lead to her complete collapse.”
The following morning, August 26th, this certificate was presented to the referee, who appointed Dr. W. J. Carrington of Atlantic City, N. J., to examine Mrs. Fox. He did so that evening in the presence of Dr. Hersohn, who in an affidavit said that, “At the conclusion of his examination Dr. Carrington ' agreed with me that it would be much better if Mrs. Fox did not have to go to court for a period of one or two weeks and then only if her condition was improved and she was properly protected by the referee and was shown special consideration and treatment because of her condition.” This was partly denied by Dr. Carrington, who said in his report to the referee that, “I cán see no organic reason why the patient should not testify in court. Because of her tendency toward nervousness, aggravated by the menopause, I might suggest that unusual consideration be shown in the manner of questioning and that whenever possible the answers to questions be obtained from other sources.”
The referee stated at the opening of court that she would not be excused from testifying, and directed counsel to have Mrs. Fox in court to testify at the adjourned hearing on Tuesday, September 1, 1936, at 10 o’clock in the morning. She was not present in court at the time suggested, and the referee directed Dr‘. Carrington to examine her again that day. This he did in the presence of Dr. Hersohn at 1 o’clock that afternoon. Dr. Hersohn says that Mrs. Fox at that time had not improved, and that she was unable to appear and testify in court. He said as her personal physician: “I have advised Mrs. Fox that it would be extremely dangerous to her health to go to court and testify in her present condition.” He says that Dr. Carrington then and there agreed with him. Dr. Carrington again denied this.
The following day Dr. Samuel Ritter, of New York City, who had been attending Mrs. Fox for two and a half years, examined her. Fie said that she was suffering from the menopause, and was bordering on a complete nervous breakdown, and that “any unusual mental or physical strain such as testifying in court, would, at this time result in very serious consequences. Menopausal insanity is not an uncommon result in situations of this kind,” etc.
Dr. Carrington, as well as Dr. Ilersohn, said that in the examinations Mrs. Fox had been “exceedingly cooperative.” The referee certified Mrs. Fox to the District Court for contempt because of her failure to appear as directed, abd that court, on April 29th, adjudged her to be in contempt of it and of the referee in bankruptcy, and ordered her to appear before it on June 4, 1937, to receive sentence. It further ordered that if she appeared before the referee in bankruptcy before that time and produced with her certain books, papers, records, and documents, she would be considered as purging herself of contempt. -
The court did not say whether it found her to be guilty of criminal contempt or of civil contempt. It probably had in mind civil contempt, for the punishment which the opinion indicated might be imposed is appropriate to a finding of civil contempt. Thereafter, an appeal was taken to this court, which was argued on December 6, 1937.
While this court recognizes that it is the function of the District Court to find the facts which are usually binding upon the appellate court, yet in view of the fact that all the physicians had found that Mrs. Fox was “exceedingly cooperative,” seemed willing herself to testify, if she could; that there was no contradiction that she had been advised by both of her physicians that it was dangerous to her health to go inis court and testify; that a large part of the evidence upon which the finding of contempt was based was taken before the referee only; and in view of the further fact that eminent physicians had reached contrary conclusions upon the same facts as to the effect testifying in court would have upon her, we desired to know whether or not she could now with safety to her health appear before the referee and purge herself of the alleged contempt. Consequently, we asked Dr. Ross V. Patterson, dean of the Jefferson Medical College and Hospital of Philadelphia, a physician who knew none of the parties here involved and who has a national reputation in the practice of nervous and menopausal conditions, to make an independent examination of Mrs. Fox for the court. Tie did so, and submitted a report in writing to us. He said that his examination consumed an hour and a half; that Mrs. Fox was in bed and no one else was present; that before the examination he did not talk with a physician or any one else about her condition; and that he found no evidence of simulation on her part or any unwillingness to testify. A copy of his report was submitted by the court to counsel of both parties, and the dean himself was present in court and an opportunity was given to counsel on both sides to examine him, hut counsel for appellee declined to do so. Among other things in his report and testimony the dean said that Mrs. Fox “cooperated apparently without reserve, in the examination and in giving all information requested in so far as she seemed able to do.” He further said'that: “I am of the opinion that Mrs. Fox is incapable of giving reliable, dependable, or accurate testimony in any matter of any complexity; her memory is too defective, her mental disturbance too great to make this possible. Her condition doubtless .varies somewhat from time to time. Second, if compelled to appear, or even appearing voluntarily, would entail a strain, the results of which might be serious. A fatal attack of angina is not impossible. Less serious symptoms are likely, though I cannot say they are certain to occur.”
There is practically no' substantial difference between the doctors as to the facts they found. In speaking of the findings of Dr. Hersohn, Dr. Carrington said: “I agreed thoroughly with his findings”. All the physicians, Dr. Hersohn, Dr. Ritter and Dr. Carrington, practically agreed as to her condition and that she fully cooperated with them in the various examinations, but Dr. Carrington differed with the others as to the effect that testifying in court might have upon her. He does not seem sure of his conclusion, however, and as stated before, rather apologetically says: “Because of her tendency toward nervousness, aggravated by the menopause, I might suggest that unusual' consideration be shown in the manner of questioning and that whenever possible the answers to questions be obtained from other sources.”
The District Court was in error when it said that “the physicians entirely disagree,” unless he confined the disagreement to the effect testifying in court might have upon Mrs. Fox. Dr. Hersohn said that “Dr. Carrington and I discussed the matter (the examination of Mrs.. Fox) and then Dr. Carrington called Referee Steedle on the telephone . in my presence and advised Mr. Steedle that I was present when such telephone conversation was taking place. In the course of that conversation with Mr. Steedle, Dr. Carrington stated that he agreed with my findings. and also agreed that Mrs. Fox was in a bad nervous and mental condition. He stated to Referee Steedle that he differed with me only in respect to the fact as to whether or not more harm or good would come to Mrs. Fox from testifying or from remaining home without testifying, with the constant thought that at some time in the future she would have to testify.” Dr. Carrington' said that was correct, except that he did not use the word “mental.”
If the court intended to adjudge-Mrs. Fox guilty .of criminal contempt, it erred for the reasons stated in the case of In re Fox, Herbert Leitstein v. Capital. Company and Chicago Title & Trust Company, 3 Cir., 96 F.2d 23. But if it intended to adjudge her guilty of civil contempt, as it most probably did, the evidence was-not sufficient to justify such conclusion. The plaintiff has a heavy burden to show a defendant guilty of civil contempt. It must be done by “clear -and convincing evidence,” and where there is ground to doubt the wrongfulness of the conduct of the defendant, he should not be adjudged in contempt,. California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 5 S.Ct. 618, 28 L.Ed. 1106; General Electric Co. v. McLaren, C.C., 140 F. 876; Hanley v. Pacific Live Stock Co., 9 Cir., 234 F. 522; Electro-Bleaching Gas Co. v. Paradon Engineering Co., Inc., D.C., 15 F.2d 854.
Proof that Mrs. Fox was well enough to-testify without serious danger to her health rests alone upon the opinion of Dr. Carrington, who really did not seem sure of his conclusions, for he suggested that “unusual consideration” be shown in the manner of questioning, and that whenever possible the-answers to questions be obtained from other sources.
There is no doubt, that Mrs. Fox, when-, called to testify, was in a very nervous condition, tired, exhausted; that she was more' nervous when Dr. Carrington examined her on September 1, 1936, than when he examined her on August 26, 1936; that she did not sleep at night; that when she attempted to testify, she had a nervous breakdown, lost her voice, her memory, and could not understand simple questions; that Dr. Hersohn had never seen her look like she did the evening after she attempted to testify;that she has severe headache and the symptoms accompanying the' menopause; and that all these are not simulated, but real, for she was “exceedingly cooperative” in the examination. From these uncontroverted and admitted facts, two reputable physicians, say that she could not at that time have-testified without risking serious physical and mental consequences.
We think it was not established by that clear and convincing proof which the law requires that she was guilty of any contempt because she failed to appear and testify as directed to do by the referee.
Dr. Patterson says that she is not now able to appear and testify without risking serious consequences, and that if she does so, her mental and physical condition is such that “Mrs. Fox is incapable of giving reliable, dependable, or accurate testimony in any matter of any complexity; her memory is too defective, her mental disturbance is too great to make this possible.” It is further his opinion that she was not able to testify when directed to do so.
The order adjudging the appellant guilty of contempt is reversed, but the creditors are entitled to have Mrs. Fox testify and answer any questions relating to any transaction with the bankrupt when she is mentally and physically able to do so without serious risk to her health.
Accordingly, we remand the cause to the District Court for due procedure in accordance with this opinion.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_numappel
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
INSURANCE COMPANY OF NORTH AMERICA et al. v. TRAWLER CORMORANT, Inc. et al.
No. 4830.
United States Court of Appeals, First Circuit.
June 21, 1954.
Thomas H. Walsh, Boston, Mass. (Leo F. Glynn, Boston Mass., on the brief), for appellants.
Charles S. Bolster, Boston, Mass. (Francis T. Leahy and Bingham, Dana & Gould, Boston, Mass., on the brief), for Trawler Cormorant, Inc., and Pilgrim Trust Co., appellees.
Francis E. Silva, Jr., Boston, Mass. (Richard J. Cotter and Warner, Stack-pole, Stetson & Bradlee, Boston, Mass., on the brief), for Bromfield Mfg. Co., Inc., appellee?
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
The final decree of the District Court entered on October 22, 1953, is affirmed.
Question: What is the total number of appellants in the case? 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.
O. D. BRATTON et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. O. D. BRATTON and Dorothy Bratton, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. J. Ross HOLCOMB, Jr., Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Frank A. CONKLING and Eula W. Conkling, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. James A. HOLCOMB and Lou H. Holcomb, Respondents. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Nolah D. HOLCOMB, Respondent.
Nos. 14062-14067.
United States Court of Appeals Sixth Circuit.
Oct. 31, 1960.
Lowell W. Taylor, Memphis, Tenn. (Hubert A. McBride and John J. Dog-gett, Jr., Memphis, Tenn., on the brief), for 0. D. Bratton.
Arthur I. Gould, Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, — A. F. Prescott and Arthur I. Gould, Attys., Dept, of Justice, Washington, D. C., on the brief), for Commissioner of Internal Revenue.
Before MILLER, CECIL and WEICK, Circuit Judges.
PER CURIAM.
The controversy here involves the tax consequences of distributions made to the shareholder-creditors of a closed corporation, upon its dissolution and liquidation. The shareholders were creditors in varying amounts for salaries and commissions owing to them by the corporation.
In the liquidation, the corporation undertook to distribute assets to its shareholders for their capital interests prior to the satisfaction of their claims as creditors. The corporation then handled the shareholders’ claims as creditors by selling its mill and related equipment and certain inventories in exchange for long-term, instalment, negotiable, interest bearing promissory notes of the purchasers secured by a mortgage on the property sold by the corporation to them. The corporation transferred the notes and mortgage to a bank with authority to collect the payments on the notes and make distribution to the shareholder-creditors. The purchasers assumed the indebtedness owing to the shareholder-creditors, but agreed to pay it only out of the instalments due on the notes. The shareholder-creditors released the corporation from said indebtedness and agreed to look to the notes secured by the mortgage.
The real dispute, between the parties, relates to the manner in which the notes should be treated for tax purposes. Taxpayers claim that the notes should not be considered as a distribution in cash and that they should be taxed only on the actual instalments paid on the notes as and when received by them from the bank. Taxpayers insist that the notes were never delivered to them and that they have neither title to or possession of the notes.
The Commissioner on the other hand maintains that the notes should be taxed at their full face value in 1952 at the time when they were transferred to the bank.
The Tax Court determined that the transfer of the notes to the bank was in reality for the benefit of the taxpayers and that the bank in collecting the in-stalment payments and distributing them to taxpayers was acting as their agent. The Tax Court further held that the notes should be taxed at their full face value at the time of the assignment to the bank since there was no proof that their fair value was any less, citing Loyer v. Commissioner, 6 Cir., 1952, 199 F.2d 452. The Tax Court further held that the value of the notes represented ordinary income to the taxpayers to the extent of the corporate indebtedness owing to them, and that any sums received in excess thereof were taxable as capital gains to the extent that they exceeded the basis for their shares of stock.
We think there was substantial evidence to support the findings of fact and conclusions of the Tax Court. They are binding on this Court unless clearly erroneous. Commissioner of Internal Revenue v. Spermacet Whaling & Shipping Co., 6 Cir., 281 F.2d 646.
The decisions of the Tax Court may be justified on another ground. Where the note of a third person is accepted by a creditor, it ordinarily operates as a payment and discharge of the indebtedness. Southworth v. Thompson, 1872, 57 Tenn. 10, 17; Union Bank of Tennessee v. Smiser, 1853, 33 Tenn. 501. Our case is stronger because the shareholder-creditors here actually released the corporation and agreed to look solely to the notes for the payment of their indebtedness. There was a substitution of a new debtor in the place of an old one and this constituted a novation. Russell v. Centers, 153 Ky. 469, 473, 155 S. W. 1149; Crabb et al. v. Cole, 19 Tenn. App. 201, 84 S.W.2d 597.
The decisions of the Tax Court are affirmed.
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_casetyp1_1-3-1
|
P
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Appellee, v. Rudolph A. TROPEANO, Defendant, Appellant.
No. 72-1337.
United States Court of Appeals, First Circuit.
Argued March 6, 1973.
Decided April 10, 1973.
Lawrence F. O’Donnell, Boston, Mass., with whom Francis X. Aylward, Boston, Mass., was on brief, for appellant.
Michael J. Madigan, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
ALDRICH, Senior Judge.
Defendant, a government meat inspector, convicted of violations of 21 U.S.C. § 622 (“Bribery of or gifts to inspectors or other officers and acceptance of gifts”) by the receipt of money and meat products, from a processor, lists fifteen points on his appeal. A number are answered by our recent decision in United States v. Seuss, 1 Cir., 1973, 474 F.2d 385. A larger number need no discussion, either because they do not possibly involve plain error, or because they do not possibly involve error of any sort. Two matters remain.
Defendant’s trial took place after the conviction of some other defendants on similar charges. After testimony had started, defendant’s counsel learned that some of the jurors had sat in a previous case. Defendant moved for a mistrial. The court denied the motion, on the ground that the objection came too late and because the jurors were not disqualified as a matter of law.
The second portion of this ruling was clearly correct. United States v. Ragland, 2 Cir., 1967, 375 F.2d 471, cert. denied 390 U.S. 925, 88 S.Ct. 860, 19 L. Ed.2d 987, and cases cited at 476 n. 2. On the record, the first was, also. Defendant knew there had been previous trials. Although it would have been a simple matter to request the court to inquire of prospective jurors at the time of impanelling whether they had sat before, defendant did not do so. Had he done so the court should probably have regarded the disclosure as a ground for challenge for cause. Indeed, defendant had not even consumed his peremptory challenges.
Defendant’s counsel offers as excuse a conversation with a deputy clerk which led him to believe he was going to get “fresh” jurors. This circumstance does not appear of record with any clarity. Even if we were to assume it did, it would not constitute an adequate excuse. A trial is a serious matter. It is not within the scope of the duties of a deputy clerk to supply such information. The clerk’s office is often helpful and, from experience, parties may find the advice of a clerk on all sorts of matters to be valuable. Counsel must, however, take their own chances on such informal instruction, particularly in a situation like the present, where first hand information and the ability to protect oneself is readily available. The government is rarely if ever estopped by a statement of an official outside his authority. Cf. United States v. Rossi, 9 Cir., 1965, 342 F.2d 505.
If the rule were otherwise, courts would be obliged to forbid their clerks to have any contact with counsel except in the rigid performance of their statutory duties. The bar would be the first to object to such a rule. The alternative is that counsel must make their own decision whether to trust such informal information, or, as we have sometimes found the problem to be, and would seem here, to trust their own understanding of what the clerk may have said. In this case, if in fact counsel correctly understood the clerk and the clerk was mistaken, it is the defendant who properly must bear the consequences. In fact, in much clearer cases, as where the clerk’s office fails to send out a notice, the loss falls on the party who relied on the clerk’s office instead of checking the record. See, e. g., Buckley v. United States, 10 Cir., 1967, 382 F.2d 611, cert. denied 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97.
Secondly, defendant complains that the prosecutor violated the rule forbidding his stating in argument his personal belief in defendant’s guilt. The now objected-to statement was as follows.
“Do you recall that I said in my opening statement perhaps improperly, it is not a very nice story, because I believe that is true, it is not a very nice story. It is a story that happened.”
We consider that a listener would take the first part of this statement as the prosecutor’s concurrence in the sorry nature of the tale told by the government’s witnesses. It would have been better had he made the second sentence less direct: “I ask you to find that it happened.” “I submit that it happened.” “The government witnesses were clear in their testimony . . .” etc. But while we regret the form, we do not find it so positive that we must reverse. Nonetheless, the lesson to the prosecutor should be obvious; “I believe” is a dirty verb.
Affirmed.
. All that appears is that counsel informed the clerk that he wanted a fresh jury. It does not appear now, nor was the claim made to the district court, that the clerk informed him that, without more, he was going to get one.
. We cannot forbear remarking, from viewing the record, that the same sauce should be applied to the gander.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Steven Lynn RAMSEY, Petitioner-Appellant, v. Edward BRENNAN, Respondent-Appellee.
No. 88-1145.
United States Court of Appeals, Seventh Circuit.
Submitted April 26, 1989.
Decided June 29, 1989.
Steven Lynn Ramsey, Oxford, Wis., pro se.
Sheree L. Gowey, Asst. U.S. Atty., Madison, Wis., for respondent-appellee.
Before CUMMINGS, CUDAHY, and POSNER, Circuit Judges.
POSNER, Circuit Judge.
Steven Lynn Ramsey, a federal prison inmate, claims that he should have received credit toward his prison sentence for the 96 days that he served in a halfway house before his criminal trial. Arrested by agents of the FBI for bank robbery and related crimes, Ramsey was released on bail on various conditions, including that he remain in St. Andrews Halfway House in Lexington, Kentucky until trial. He was later convicted and sentenced to 9 years in prison. He asked the warden of the prison in Wisconsin where he is confined to credit his time in the halfway house toward his prison sentence. The warden refused, and after exhausting his administrative remedies Ramsey brought this action under the habeas corpus statute, 28 U.S.C. §§ 2241 et seq.] cf. United States v. Hornick, 815 F.2d 1156, 1160 (7th Cir.1987).
Federal law provides that the “Attorney General shall give any [person sentenced to prison] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” 18 U.S.C. § 3568. To a normal English speaker, even to a legal English speaker, being forced to live in a halfway house is to be held “in custody”; and the requirement of connection is satisfied here. Just the other day we affirmed in an unpublished order a judgment of conviction for escaping from a halfway house, under a statute which makes it a crime for anyone to escape or try to escape “from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General.” 18 U.S.C. § 751(a); United States v. Corcoran, 876 F.2d 106 (7th Cir.1989). Finally, in Johnson v. Smith, 696 F.2d 1334 (11th Cir.1983), on which Ramsey relies heavily, the Eleventh Circuit held that it is a violation of equal protection (the principle of equal protection of the laws was held in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), to be an implied term of the Fifth Amendment’s due process clause) to deny credit for time spent in a halfway house before trial, since confinement in a halfway house after sentencing does not toll the period of one’s sentence.
Despite all this, we agree with the government and the Fifth Circuit, see United States v. Smith, 869 F.2d 835 (5th Cir.1989), that “custody” in section 3568 does not include time spent in a halfway house awaiting trial. The word is a chameleon. In the habeas corpus statute itself “custody” includes being out on bail, see Hensley v. Municipal Court, 411 U.S. 345, 348-49, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973); see generally Maleng v. Cook, — U.S. -, 109 S.Ct. 1923, 1925-26, 104 L.Ed.2d 540 (1989), and Ramsey does not argue that the Attorney General is required to give jail credit for bail time. See United States v. Robles, 563 F.2d 1308 (9th Cir.1977) (per curiam); Sica v. United States, 454 F.2d 281 (9th Cir.1971) (per curiam). The wording of the escape statute actually supports the government’s argument here, since it distinguishes between “custody” on the one hand and confinement in any facility pursuant to an order of the Attorney General on the other. Ramsey was confined in the halfway house by direction of the Attorney General, but the escape statute implies that this may not have been custody.
In a halfway house (“residential community center” in bureaucratese) the inmate or resident is confined only at night, placing him in a twilight zone between prison and freedom. Whether such confinement should count as time served toward his prison sentence — whether the deprivation of liberty by confinement in a halfway house is sufficiently like prison to be treated the same in deciding how long the convicted criminal should serve — is not a question susceptible of rational determination, at least by tools of inquiry available to judges. It is a matter of judgment, or policy, or discretion, and we are fortunate in having a policy statement by the Bureau of Prisons which opines unequivocally that “Time spent in residence in a residential community center ... as a condition of bail or bond ... is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 U.S.C. 3568.” BOP Policy Statement No. 5880.24(5)(b)(5). This is a reasonable opinion by officials having greater knowledge of federal penal policy than we judges have, so we are inclined to defer to it.
We are unpersuaded by the Eleventh Circuit’s equal-protection analysis. Criminals sentenced to serve a part of their term in a halfway house rather than in a prison are not given credit for time served in the same sense in which Ramsey is seeking credit. They are merely beneficiaries of the Attorney General’s discretionary authority to “designate as a place of confinement any available, suitable, and appropriate institution or facility,” 18 U.S.C. § 4082(b) (since repealed), expressly including a halfway house, see § 4082(g). The legislative history of section 4082(g) indicates that Congress wanted to facilitate the re-entry of convicts into society by making the last stage of their confinement transitional— hence the apt name “halfway house.” See S.Rep. No. 613, 89th Cong., 1st Sess. 2 (1965), U.S.Code Cong. & Admin.News 1965, p. 3076; Brown v. Rison, 673 F.Supp. 1505, 1510 (C.D.Cal.1987). That policy has no application to a prisoner moving in the opposite direction, like Ramsey.
We affirm the dismissal of Ramsey’s action for habeas corpus. Since our decision creates a conflict with the Eleventh Circuit we have circulated the opinion in advance of publication to all the active circuit judges, none of whom has voted to hear the case en banc. See 7th Cir.R. 40(f).
Affirmed.
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_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.
Laurence E. RANDALL, et al. v. MERRILL LYNCH, et al., Appellants.
No. 86-5372.
United States Court of Appeals, District of Columbia Circuit.
Argued March 2, 1987.
Decided June 19, 1987.
Barbara Moses, with whom Steven A. Brick, San Francisco, Cal., Jerry W. Markham and Stuart M. Goldberg, Washington, D. C., were on the brief, for appellants.
Paul H. Melbostad, with whom Thomas E. Horn, San Francisco, Cal., and Douglas B. Huron, Washington, D.C., were on the brief, for appellees.
Before MIKVA, STARR and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.
MIKVA, Circuit Judge:
This appeal is the latest event in a protracted dispute arising from appellees’ maintenance of securities accounts with Merrill Lynch. Appellees twice brought suit against Merrill Lynch in Federal District Court in California. On both occasions, Merrill Lynch successfully moved to transfer to the District of Columbia, and appellees responded in both cases by voluntarily dismissing pursuant to Federal Rule of Civil Procedure 41(a)(1). The rule provides that a second voluntary dismissal has the effect of an adjudication on the merits. Following the second dismissal, appellees attempted to initiate arbitration. In January, 1986, the Eastern District of California enjoined the arbitration, as well as any other litigation, on the ground that a second voluntary dismissal under Rule 41(a)(1) operates as an adjudication on the merits barring further litigation. After this ruling appellees filed a motion with the District Court for the District of Columbia to vacate the second dismissal. In May, 1986, 110 F.R.D. 342, relying on Federal Rule of Civil Procedure 60(b)(6), the district court vacated the second dismissal, effectively authorizing appellees to go forward with their attempt at arbitration. It is this decision which Merrill Lynch challenges on appeal. We affirm.
I. Background
In July, 1982, Laurence and Nadine Randall opened accounts with Merrill Lynch in the company’s Washington, D.C. office. The Randalls thereafter moved to Chico, California, where they continue to reside. In December, 1983, the Randalls filed a complaint against Merrill Lynch in the United States District Court for the Northern District of California. As amended, the complaint alleged violations of various federal securities laws and regulations, as well as other claims. The essence of appellees’ claim was that Merrill Lynch fraudulently concealed trading on the Randalls’ account and fraudulently misrepresented the status of the Randalls’ account, which caused them to violate prescribed margin requirements. Because of the margin-requirement violations, Merrill Lynch then froze the Randalls’ account. As a result of this freeze, a number of options in the Randalls’ options account expired, resulting in substantial financial loss. On April 23, 1984, the court granted Merrill Lynch’s motion to transfer the case to Washington, D.C. pursuant to 28 U.S.C. § 1404(a). Appellees voluntarily dismissed their case on August 13, 1984, before any proceedings took place in the District Court for the District of Columbia.
Shortly thereafter, the Randalls filed a revised complaint in the U.S. District Court for the Eastern District of California, where Chico is located. The second complaint was substantially identical to the first complaint. As before, Merrill Lynch moved to transfer the case to the District of Columbia. In March, 1985, the court granted the motion to transfer.
In August, 1984, Laurence Randall suffered an attack of acute, stress-related anxiety disorder and was certified as fully disabled by the State of California. Mr. Randall’s doctors directed him not to participate in any cross-country litigation because of serious risk of suffering a heart attack or stroke. Mr. Randall’s inability to work coupled with the medical costs necessitated by his illness depleted the Randalls’ financial resources.
These health and financial concerns prompted the Randalls to terminate their pending legal action. On May 3,1985, they again filed a notice of voluntary dismissal. The Randalls were informed by counsel that the second voluntary dismissal might have a preclusive effect under the “two-dismissal rule,” which is a subsection of Federal Rule 41. That subsection provides that “a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claims.” Fed.R.Civ.P. 41(a)(1).
After the second voluntary dismissal, appellees filed, on July 9, 1985, a petition for arbitration with the National Association of Securities Dealers. In August, Merrill Lynch filed suit in the Eastern District of California to enjoin the arbitration, citing the two-dismissal rule. The district court granted defendant’s motion for summary judgment on that basis. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Randall, 110 F.R.D. 499 (E.D.Cal.1986). In its opinion, the court stated that “the proper remedy is for the Randalls to move to vacate the second dismissal before the District Court for the District of Columbia rather than a third attempt to litigate the claim.” Id. at 500.
In March, 1986, appellees filed just such a motion to vacate, and the District Court for the District of Columbia granted the motion on May 14, 1986. See Randall v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 110 F.R.D. 342 (D.D.C.1986). The court relied on Rule 60(b)(6), which permits a court to relieve a party from a final judgment for reasons of justice. The court found that at the time of the second dismissal, “Mr. Randall suffered a disabling illness that would permit his participation in this litigation only at the risk of even greater disability” and that “Mr. Randall’s illness caused a serious depletion of [appellees’] assets, leaving them unable to maintain litigation in this district.” Id. at 344. The court also held that the Randalls’ decision to terminate the case was not “free, calculated, or strategic,” but rather was “precipitated by events beyond their control.” The court further found that vacating the second dismissal would not prejudice Merrill Lynch. Id. at 344. These findings, coupled with a strong policy favoring resolution of cases on the merits, persuaded the court to grant the Randalls’ motion. This appeal followed.
II. Discussion
A. Authority Under Rule 60(b)(6) to Vacate Voluntary Dismissals
Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure provides a simple, self-executing mechanism whereby a case may be dismissed in certain circumstances without motion, argument, or judicial order. When the plaintiff files a notice of dismissal before service by the adverse party of an answer or of a motion for summary judgment, the dismissal takes effect automatically: the trial judge has no role to play at all. Appellant contends that the dismissal is not only automatic but also irreversible. A trial judge, appellant argues, has no discretion to vacate a Rule 41(a)(1)(i) voluntary dismissal. According to appellant, a judge may not vacate such a dismissal even pursuant to Rule 60(b)(6), which authorizes a court on motion to relieve a party from a “final judgment, order or proceeding for ... any ... reason justifying relief from the operation of judgment.”
Appellant primarily relies on Thorp v. Scarne, 599 F.2d 1169 (2d Cir.1979), and D.C. Electronics, Inc. v. Nartron Corp., 511 F.2d 294 (6th Cir.1975), to support this proposition. We find these authorities in-apposite. They held that a trial judge has no discretion to prevent a voluntary dismissal in the first instance; they did not speak to whether a court has discretion to vacate a voluntary dismissal at a subsequent time on the original plaintiff's motion. Appellant also cites Santiago v. Victim Services Agency, 753 F.2d 219 (2d Cir.1985). But this case also is wide of the point. In Santiago, the court held only that once a plaintiff has voluntarily dismissed his case the trial court has no jurisdiction to grant a defendant’s motion for attorney’s fees. Santiago has no bearing on a court’s authority to entertain a 60(b) motion to set aside a dismissal under Rule 41 (a)(1)(i). In short, appellant cites no case law, and this court has found none, to support its position.
No such case exists because the language of the Federal Rules of Civil Procedure clearly supports the opposite result. As noted previously, Rule 60(b) allows a court to relieve a party from a “final judgment” for any reason justifying relief. Because the voluntary dismissal in this case operated as an adjudication on the merits, it was a “final judgment” under Rule 60(b). And nothing in the language of Rule 41(a)(1)(i) exempts voluntary dismissals from the scope of judicial authority under Rule 60(b). We therefore conclude that the district court had power to vacate this voluntary dismissal under Rule 60(b) if the requisite justification existed.
B. Justification for Application of Rule 60(b)(6)
A trial court enjoys a large measure of discretion in deciding whether to grant or deny a 60(b) motion, see 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 60.19 (2d ed. 1985); 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2857 (1973). A reviewing court may reverse a district court’s grant of relief under Rule 60(b)(6) only for an abuse of discretion. See Southern Pacific Telecommunications Co. v. American Telephone & Telegraph Co., 740 F.2d 1011, 1017 (D.C. Cir.1984).
Rule 60(b) “was intended to preserve the ‘delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.’ ” Good Luck Nursing Home v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980). Two Supreme Court cases delineate the broad parameters within which district courts are to exercise their discretion in achieving this balance. In Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), the Court approved the use of Rule 60(b)(6) to vacate a default judgment entered against the petitioner at a time when the petitioner was unrepresented by counsel, facing health and financial hardships, and serving a prison term. The Court stressed that courts should apply Rule 60(b)(6) whenever such action is appropriate to accomplish justice. Id. at 614-15, 69 S.Ct. at 390. In Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950), however, the Court distinguished Klapprott as an exception to the general principle of the finality of judgments. The Court stressed that Rule 60(b)(6) should not be used to relieve a party of the consequences of voluntary litigation choices or improvident strategic decisions. The Court also found that mere financial hardship was insufficient justification for vacating a final judgment under Rule 60(b). It therefore held that the district court had not abused its discretion in denying petitioners’s 60(b)(6) motion.
Applying these parameters, we find that the district court’s decision to vacate the second voluntary dismissal was not an abuse of discretion. Ackermann prohibits a court from utilizing Rule 60(b)(6) to relieve a party from a voluntary dismissal based only on financial hardship. In this case, however, the lower court found that Mr. Randall suffered a disabling illness that would have permitted his participation in the litigation only at the risk of even greater disability. We find that the district court did not abuse its discretion in determining that this combination of health and financial considerations was sufficient to permit relief under Rule 60(b)(6).
Appellant urges, however, that the district court committed an error of law in characterizing the second voluntary dismissal as not “free, calculated, or strategic.” This argument relies on the language of Rule 41. Appellant argues that a dismissal cannot be “voluntary” under Rule 41 without at the same time entailing the kind of strategic choice which the Supreme Court held in Ackermann is beyond repair by Rule 60(b). Appellant asserts that the only circumstances that would act to make a Rule 41 dismissal “involuntary” would be instances of fraud or misapprehension. We do not believe that Rule 41 can be so construed. The term “voluntary” in Rule 41 means that the party is filing the dismissal without being compelled by another party or the court. In other words, it does not mean that other circumstances might not have compelled the dismissal or that the party desired it. We therefore find that a dismissal may be “voluntary” under Rule 41(a)(1) without being “free, calculated, and deliberate” in the sense Ackermann indicates would preclude relief under Rule 60(b)(6). The district court’s conclusion that this was such a case was not an abuse of discretion in light of the combination of circumstances confronting the Randalls when they decided to file for a second voluntary dismissal.
Finally, we note that the district court’s order does not unduly prejudice Merrill Lynch. Merrill Lynch contends that it has been prejudiced by the passage of time between the second dismissal and the district court’s order. But that period — just over a year — was not so lengthy as to have prejudiced Merrill Lynch’s ability to defend itself in court. Cf. Washington v. Penwell, 700 F.2d 570, 572-73 (9th Cir.1983) (four-year delay not unreasonable in light of extraordinary circumstances); Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (six-year delay unreasonable in case of liquidated-damages decree and no extraordinary circumstances). Merrill Lynch also claims that it has suffered prejudice because it must now incur additional costs to contest the Randalls’ claims. Additional legal costs, however, are the inevitable result whenever a judgment is vacated. See Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984). Yet Rule 60(b) certainly contemplates that some judgments will be vacated. In the circumstances of this case, particularly given the fact that the previous, abortive litigation can hardly have imposed significant costs on Merrill Lynch, we find that the prospect of future litigation costs does not rise to the level of unfair prejudice.
III. Conclusion
Rule 60(b) is the mechanism by which courts temper the finality of judgments with the necessity to distribute justice. It is a tool which trial courts are to use sparingly, but their discretion to employ it is not to be lightly overturned on review. We hold that Rule 60(b)(6) can be used to vacate voluntary dismissals resulting in final judgments, and that the district court did not abuse its discretion in relying on appellees’ combination of hardships to vacate their second voluntary dismissal. The judgment of the district court is affirmed.
It is so ordered.
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_adminrev
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 75-1132.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 17, 1975.
Decided Dec. 31, 1975.
Rehearing and Rehearing En Banc Denied Feb. 18, 1976.
J. Dennis O’Brien, LeFevere, Lefler, Hamilton & Pearson, Minneapolis, Minn., for petitioner.
Marjorie S. Gofreed, Atty., N. L. R. B., Washington, D. C., for respondent. John C. Miller, Acting General Counsel, John S. Irving, Deputy General Counsel, Elliott Moore, Deputy Associate General Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., appeared on the brief.
Before CLARK, Associate Justice, and LAY and ROSS, Circuit Judges.
Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.
PER CURIAM.
This petition for review of an order of the National Labor Relations Board involves the discharge of six of petitioner’s employees for successive partial strikes in violation of Section 8(a)(1) of the National Labor Relations Act and the discharge of one employee for an alleged violation of petitioner’s “no solicitation” rule in violation of Section 8(a)(1) as well as Section 8(a)(3) of the Act. The issue rests upon determination of facts made by the Board in its findings.
The Facts
The petitioner, Crenlo, Division of GF Business Equipment, Inc. (Crenlo), operates two plants in Rochester, Minnesota, where it manufactures sheet metal products, including metal cabinets and tractor cabs. On July 23, 1973, Local 161 of the General Drivers and Warehousemen and Helpers, International Brotherhood of Teamsters, petitioned the Board for an election at the Crenlo plants, and by stipulation an election was scheduled for September 12, 1973.
On August 15, 1973, Crenlo announced that its annual wage increase would be 25 cents per hour, effective August 18, for all production employees. There was some dissatisfaction at the increase, and some of the dissidents at the plant located at 1600 Fourth Avenue, N.W., Rochester, requested an immediate meeting with Crenlo management to discuss it. A meeting with Jerry Wollenburg, Cren-lo’s foreman, was arranged by the pressmen. At this meeting the pressmen indicated that the increase should have been 50 cents because of the increased cost of living. Wollenburg promised to present the employee position to the Crenlo management and then get back to the pressmen. About 1:30 p. m., Wol-lenburg was told by a pressman that work would stop at 2 p. m. if management did not “come down.” Wollenburg, who had reported his previous noon meeting to Crenlo’s top management, also reported this second conversation. He was instructed to tell any employee who stopped work to either return or punch out, leave the plant, and report to the personnel office the next morning for disciplinary action.
At 2 p. m. the pressroom employees stopped work and demanded an answer from Wollenburg. He followed his instructions and told them to return to work or punch out, leave the plant, and report to Personnel subject to disciplinary action. Some of the employees reported back to work. Some 26, however, were upset and angry that top management would not appear and chose to remain idle and repeatedly demand that top management come down to explain its position. Subsequently, they asked Wollenburg why no response was forthcoming and again requested that top management come down to talk over the controversy. Wollenburg explained that top management was not in the plant and that the plant manager, McKibben, could not act in their absence, although he was much concerned over the employees’ demands. The controversy continued with the employees debating among themselves whether to return to work and finally, at about 2:55 p. m., they decided “to go back to work and give [management] more time to think about it and see what would happen in the morning.” By 3 p. m. all of the employees had returned to work, but some indicated that another work stoppage would occur at 9:30 a. m. the following day.
The night or second shift of employees came on at 3:30 p. m. Shortly before that time, a first shift employee, Archie Asleson, who had played a leadership role in the first shift activity, told Wol-lenburg: “Today it was just the press-room. Tomorrow the welders are with us.” After the first shift went off work, they held a meeting and voted to stop work again at 9:30 a. m. the next morning to wait for top management to come down and discuss their wage demands. Some second shift employees attended the meeting. Wollenburg met with Plant Manager McKibben to determine if there were any ringleaders behind the action of the employees and if there were, who they might be. At this meeting they agreed as to the identity of the instigators of the trouble. Those agreed upon were the same ones who were subsequently terminated. The night or second shift workers discussed the day’s activity during their dinner break at 6 p. m. and coffee time at 9 p. m. They voted to come in the next morning and give their support to the first shift in an effort to get top management to respond to their wage demands.
A check of the plant by management at 7 p. m. indicated that some of the welders were angry or worried about their jobs. Their work might be curtailed if the pressroom went out and production of parts ceased. One welder reputedly waived a sledge hammer and said, “If those bastards come down here, I’ll cave their heads in.”
On Friday, August 17, the first shift returned on schedule and began to work. Since rumors continued that there would be a work stoppage at 9:30 a. m., the top management met about 9 a. m. in General Manager Bouffard’s office. Those present included Bouffard (General Manager, Guidenger (Personnel Manager), McKibben (Plant Manager), Stevens (General Foreman) and Wollenburg (Foreman). They discussed the previous day’s activity, and Wollenburg furnished the group the names of the ringleaders in both shifts. Bouffard told Wollen-burg to tell the employees to go back to work and if they did not do so, they were to punch out and report to Personnel on Monday morning, subject to disciplinary action.
The first shift employees gathered together at 9:30 a. m. in the pressroom. At about the same time, about 20 second shift employees, contrary to orders, entered the plant and began talking with the first shift employees in the work area. When Wollenburg ordered all of the first and second shift employees (about 60) to either return to work or punch out and leave, only 7 or 8 first shift employees returned to work. At 9:45 a. m., top management notified 6 of the employees that they were being terminated because of their leadership roles in the work stoppages. The following Monday, a night or second shift employee, Adrian Brakke, was terminated because of his activity on the 17th and also because he had violated a Company rule by soliciting an employee to join the Union during working hours.
The Regional Director, after investigation, refused to issue a complaint against Orenlo. The General Counsel of the Board reversed, however, and the two complaints were filed. After being consolidated, the cases were heard before an Administrative Law Judge, and he found violations of Sections 8(a)(1) and 8(a)(3) of the Act. The Board affirmed. We have examined the record and find that, with one exception, substantial evidence on the whole supports the findings of the Board and that the applicable law is with the Board. Accordingly, we direct enforcement of its order, except as to Adrian Brakke.
The Applicable Law
We start with the proposition that Section 7 of the Act guarantees employees the right to join together to seek better terms, tenure, or conditions of employment. NLRB v. Washington Aluminum Company, 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). Here the employees remained on company property in a sincere effort to meet with the management concerning a protest over wages. This they were entitled to do without being deprived of the protection of the Act. NLRB v. Case, J. I., Co., 198 F.2d 919, 922 (8th Cir. 1952); NLRB v. Kennametal, Inc., 182 F.2d 817, 819 (3d Cir. 1950). Under the circumstances here, the Board reasonably and correctly held that the employees did not forfeit the protection of the Act by engaging in two successive in-plant protests of brief duration. Foreman Wollenburg led the employees to believe what he said, that “Somehow I’ll get somebody down here I’ll do what I can.” When nothing happened, the employees went back to work. However, on the next morning, instead of the top management coming down, Wollenburg issued the same old orders to go back to \york or suffer punishment. In only a quarter of an hour, the three top officials came down, but, having already decided to terminate six of the employee leaders, did not discuss the issue. Instead the termination orders were announced.
It appears clear to us that the first shift" employees — unorganized as they were — had banded themselves together in a legitimate effort to present their grievances about wages to the management. Their action had no appreciable impact on company production and none was shown. There was no defiance, no violence, no unlawful conduct; nor were there other sporadic in-plant work stoppages or refusals to work, either in the regular shifts or overtime. All that the employees asked was that management meet and discuss wages. The employees were entitled to have their protest heard and to hear the reaction of management. On the morning of the 17th, they were but reacting individually to the Company’s misrepresentations, its dilatory tactics, and its threats to take disciplinary action rather than engage in frank discussion.
The first shift employees who participated in the brief work stoppage should not have been discharged. Accordingly, we affirm the Board’s findings and order the enforcement of the Board’s order with respect to the discharge of the five first shift employees.
We have more difficulty in finding substantial evidence on the record as a whole to support the Board’s finding that Adrian Brakke was discriminatorily discharged in violation of Sections 8(a)(1) and 8(a)(3) of the Act. This is especially true in light of the Board’s determination that Terry Rich, another second shift employee, could be discharged under the Act. Both Rich and Brakke were active union organizers. Both were singled out by management as leaders of the second shift meetings on August 16. Both violated the Company’s plant rule by coming into the work areas during the first shift. The Board determined that Rich should not have gone into the pressroom and that to do so was unprotected activity. Although Brakke also had wrongfully gone into the working areas on the morning of the 17th, the Board refused to uphold his discharge, apparently because of a number of facts differing from Rich’s case. Brakke was not discharged until the next working day. In the meanwhile, the Company received a report that he had violated its “no solicitation” rule by asking another employee to sign a union card on company time. When the management realized that Brakke had been “into this as much as the other fellows” and that he had also broken both the rule that forbade his coming into work areas during the first shift and the rule that forbade soliciting on company time, Brakke was discharged. The Board found the discharge discriminatory because it involved in part both a valid and invalid ground. The Board reached this decision by determining that the “no solicitation” rule was overbroad and vague.
In support of its position on appeal, the Board recites the long-recognized principle that it is no defense to a claim of discriminatory discharge that the discharge may have had another valid ground. The Board directs our attention to three cases: Reliance Insurance Companies v. NLRB, 415 F.2d 1, 7 (8th Cir. 1969); Mead and Mount Construction Co. v. NLRB, 411 F.2d 1154, 1155-1157 (8th Cir. 1969); and Cupples Co., Manufacturers v. NLRB, 106 F.2d 100, 117 (8th Cir. 1939). In Cupples, the court upheld the Board’s determination that, in a dispute between an affiliated and an independent union the company’s business reasons for shutting down its match department could not overcome the discrimination evident in its failure to rehire members of the affiliated union. In Reliance, the court refused to uphold the Board’s determination that a failure to hire was based upon both sound business reasons and discrimination for past union activity. It held that the business reasons were the significant motive for the failure to hire and that no union animus had been substantially proved on the record as a whole. In Mead, the court refused to uphold a Board determination that the discharge of a steward had been partly for discriminatory reasons in violation of the Act. The court there determined that no evidence of union animus had been shown.
Unfortunately, none of these cases seem apposite here where the discharge rests upon two entirely separate and independent grounds, one of which the Board has independently used and approved. The first ground, discharge for going into the work areas during the first shift, is the same conduct upon which the discharge of the only other discharged second shift employee, Terry Rich, was predicated. The second ground, violation of the “no solicitation” rule, was on its own an illegal basis for discharge, according to the Board’s interpretation of the case law. Here, however, the Board by upholding Rich’s discharge, has acted despite whatever union animus the rule’s enforcement may have demonstrated. Both Rich and Brakke were active union organizers among the second shift employees, and both had wrongfully entered the press room along with other second shift employees on the morning of the work stoppage. Yet only Rich’s discharge was approved by the Board. The sole difference between the two was the intervening passage of a weekend in the receipt of the evidence of solicitation by Brakke on company time. By approving Rich’s discharge, the Board made the law of the case, i. e., union animus does not invalidate a discharge for engaging in unprotected activity. The irrelevance of the general rule, that a discharge based partially upon valid grounds and partially upon invalid grounds must be reversed as discriminatory, is apparent. Here the Board’s own findings and determination fixed the independence of the first ground for Brakke’s discharge. The validity of the Company’s “no solicitation” rule is, therefore, not involved and we do not reach it.
When the record in a Board determination presents facts that propose conflicting inferences, it is not for us to disagree with the findings of the Board. NLRB v. Whitin Machine Works, 204 F.2d 883, 887-88 (1st Cir. 1953). However, when the Board’s determination presents- conflicting results unsupported by substantial evidence on the record as a whole, the decision is suspect. By allowing Rich’s discharge to stand, the Board determined that, at least in this case, the second shift’s intrusion during first shift working hours was an adequate, independent basis for discharge. Consistency requires that Brakke’s discharge too must be upheld.
Accordingly, we affirm so much of the Board’s order as pertains to the five first shift employees and order its enforcement. As to Brakke, we grant the petition for review and reverse the determination made by the Board that he must be reemployed.
It is so ordered.
. 29 U.S.C. § 158:
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization
. Among the six terminated that morning was Terry Rich, a second shift employee who had been active at the first shift meeting the previous day. The Board upheld his termination because he had violated a plant rule by coming on the premises during the first shift.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_procedur
|
A
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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.
Charles A. MEEKER and his wife, Sybil Meeker, Appellants, v. AMBASSADOR OIL CO., Inc., Appellee. W. G. HAUN, Appellant, v. Charles A. MEEKER, Sybil Meeker, Domestic Oil Corporation, a corp., American Drilling Company, Inc., a corp., Richard H. Meeker, Louis T. Heath, Norman Gluss, Glenn A. Smalley, Michael O’Rourke, Elfrida Von Nardroff, Edward E. Brook, Harry E. Collins, T. M. Mulherin, Olive Mulherin, Joseph P. Mulherin, Walton Dismukes, H. K. Kugel, Tom Kugel, Mary Jane Kugel, C. T. Fitzgerald, H. O. Hollingsworth, E. M. Zacharias, Clara M. Zacharias, E. Roughton, Pat Roughton, Frans Schwable, Beverly Schwable, Jack R. Lloyd, James B. Bell, B. D. Ratcliff, C. W. Andrews, The Coates-Southwest Title Company, now the Southwest Title and Trust Co., a corp., and Champlin Oil and Refining Company, a corp., Appellees.
Nos. 6822, 6823.
United States Court of Appeals Tenth Circuit.
Sept. 10, 1962.
O. R. Adams, Jr., Albuquerque, N. M., for Charles A. Meeker.
Laverne Morin, Wichita, Kan. (T. Murray Robinson, Wallace E. Robertson, C. E. Barnes, J. M. O’Loughlin, J. Thornton Wright, Jr., and J. Stanley Gill, Oklahoma City, Okl., George B. Collins, Oliver H. Hughes, Robert Martin, Kenneth W. Pringle, Jr., William F. Schell, Thomas M. Burns and Robert M. Collins, Wichita, Kan., with him on the brief), for W. G. Haun.
C. Harold Thweatt, Oklahoma City, Okl. (Crowe, Boxley, Dunlevy, Swinford & Johnson, Oklahoma City, Okl., with him on the brief), for Ambassador Oil Corp.
Before MURRAH, Chief Judge, and PHILLIPS and SETH, Circuit Judges.
PHILLIPS, Circuit Judge.
These are appeals from a single judgment in two cases consolidated for trial in the court below and for the hearing of the appeals in this court.
In No. 6822, Charles A. Meeker and his wife, Sybil Meeker, brought an action against Ambassador Oil Corporation, Hettie E. Lowder, Merle Smith and W. G. Haun. In their second amended complaint they set up two claims. The first claim sought an adjudication that plaintiffs were the owners of an undivided overriding royalty interest of Via of % in the oil and gas produced under an oil and gas lease, dated June 3, 1958, running from Lowder to Herman L. Hurst for a primary term of 30 days, covering the East % of the Northwest % and the West % of the Northeast % of Section 23, Township 16 North, Range 4 West, Logan County, Oklahoma, containing 160 acres (hereinafter called the 30-day lease); that none of the defendants in such action have any interest in the oil and gas produced or to be produced from such land, except the % royalty interest reserved by Lowder under such lease; and that Ambassador-account for the Meekers’ share of any moneys received by it from production from such land. In their second claim they sought damages against Smith, Lowder and the Ambassador Oil Company for alleged slander of their asserted title to such overriding royalty interest.
In No. 6823, Haun brought an action against the Meekers, Domestic Oil Corporation, American Drilling Company, Inc., Edward E. Brook and others, seeking a judgment decreeing him to be entitled to an overriding royalty interest in Vie of % of the oil, gas and other minerals produced from the 160-acre tract and for an accounting for his share of the oil and gas produced from such land by the defendants.
Before undertaking to state the conflicting claims asserted by the parties in such actions, we shall undertake to state the basic facts, which are not in dispute.
Lowder, at all times herein material, was the owner of the above described 160-acre tract. On June 3,1953, she executed and delivered an oil and gas lease, running to H. S. Smith, for a primary term of 5 years, covering such 160 acres, hereinafter called the 5-year lease. It was duly recorded on July 9, 1954. It remained in effect during the primary term by the payment of delay rentals. On December 30, 1955, Smith assigned it to Haun. On December 30, 1957, Haun assigned it to Hurst, reserving an overriding royalty of “%6 of %ths of all oil, gas and casinghead gas produced, saved and marketed from” such 160 acres “under the provisions of” such “lease, or any extension or renewal thereof.” The assignment provided that such overriding royalty should be free and clear of any cost and expense of development and operation, “excepting taxes applicable to said interest and the production therefrom.”
At the time of the assignment of the 5-year lease to Hurst, he also obtained a farmout from the Continental Oil Company of an adjoining 160-acre lease, called the Robinson lease, and purchased two adjacent leases known as the Austin and Telford leases, to form a development block of 640 acres.
The Meékers and their associates drilled a well on the Robinson lease. It was commenced May 8, 1958, and completed July 9, 1958, as a producing well.
On April 30, 1958, Lowder executed and delivered to Hurst the 30-day lease, in which she reserved a % royalty. It was duly recorded June 12, 1958. The lease provided it should remain in force for a term of 30 days from June 3, 1958, and for so long thereafter “as oil or gas or either of them is produced from said land by lessee,” and if no well was commenced on the land before July 3, 1958, the lease would terminate.
By an assignment dated May 15, 1958, and duly recorded June 12, 1958, Hurst transferred to the Meekers an overriding royalty interest of Vz2 of % and ss/i28 of the working interest in the 30-day lease. By the same instrument Hurst transferred to 16 other named assignees, apparently nominees of the Meekers, sVi28 of the working interest in the 30-day lease. By an assignment dated October 2,1958, and duly recorded October 3, 1958, Hurst transferred to the Meekers an overriding royalty interest of Ys2 of Vs in the 30-day lease. By an assignment dated June 3, 1958, and duly recorded June 26, 1958, Hurst conveyed to Haun a Me of % overriding royalty interest in the 30-day lease.
Edward E. Brook was the President of the Domestic Oil Corporation and American Drilling Company, Inc. He was the sole stockholder in American and owned about 75 per cent of the stock in Domestic. It was stipulated at the pretrial conference that after Hurst acquired the 30-day lease, the Meekers and Brook agreed that each would own % of 15/i6 of the Vs working interest in such lease and that thereafter Hurst conveyed to Edward E. Brook and the American Drilling Co., Inc., % of 1BÁ6 of the Vs working interest and conveyed to the Meekers % of 1SÁ6 of the Vs working interest. After the two last-mentioned transfers from Hurst were made, the Meekers, Brook and the American Drilling Company transferred to other parties fractional parts in their working interest in the 30-day lease. It was further stipulated at the pretrial conference held on September 7,1960, that the Meekers then owned 2%28 x 1bAb of the % working interest in the 30-day lease and 2Vi2sx2%2 of the Vs working interest in an oil and gas lease dated July 22,1958, duly recorded August 14,1958, running from Lowder to Ambassador, covering the 160-aere tract, and hereinafter called the Ambassador lease; that American then owned Mb x 1BAe of the Vs working interest in the 30-day lease and 9%i2 x 2%2 of the Vs working interest in the Ambassador lease, and that Brook then owned %e x 1BA6 of the Vs working interest in the 30-day lease and 9%i2X2%2 of the Vs working interest in the Ambassador lease. The remainder of the working interest was then owned by other persons by virtue of assignments from the Meekers, or American, or Brook.
On March 28, 1958, a contract was entered into between Hurst, Brook, as President of American, and the Meekers for the development of the land covered by the 30-day lease. A title opinion was furnished by Hurst to Meeker and Brook, which disclosed the overriding royalty interest of Haun. It was the intention of the Meekers to develop the property under the 30-day lease thereafter to be acquired by Hurst.
On July 1, 1958, Hurst staked out a 10-acre location on the 30-day lease. On the same day, the Beck Construction Company was ordered to do certain work preliminary to drilling on the lease. Beck started work on the afternoon of July 1 and continued on July 2. It built a road, a circulating pit, and leveled the ground for the drilling rig at the 10-acre location. After the work was started on the 10-acre location, Hurst was advised that because the sand was only nine feet thick, a well on the 10-acre location would not be profitable. He then staked out a 20-acre location on the 30-day lease and Beck broke ground on the second location. All of this occurred on July 1 and July 2. On July 2, 1958, Hurst forwarded to the Oklahoma Corporation Commission a written notification of intention to drill on the 10-acre location and another notice of intention to drill on the 20-acre location. While the preliminary work was being carried on and on July 2, Sunray Mid-Continent Oil Company, which owned an oil and gas lease directly offsetting the 30-day lease to the south and east, called Hurst and objected to Hurst proceeding with the drilling of a well at either of such locations and requested him not to drill until a spacing order had been obtained from the Oklahoma Corporation Commission covering the area in which Sunray’s lease and the 30-day lease were located.
It is fairly inferable from the testimony of Hurst that when Sunray objected on July 2,1958, to the drilling of a well on the 10-acre and 20-acre locations that it advised Hurst it was going to make an application for the establishment of 40-acre drilling and spacing units. Hurst testified that he and his associates “wanted to go along with Sunray, because they were neighbors and would help develop this field.”
On July 16, 1958, Sunray filed an application with the Oklahoma Corporation Commission for an order establishing 40-acre drilling and spacing units in the Southwest Yá of Section 13, the South Yz of Section 14, all of Section 23, the West Yz of Section 24, the Northwest Yá of Section 25, and the North Yz of Section 26, all in Township 16 North, Range 4 West, Logan County, Oklahoma. The application expressly stated that exceptions should be granted to “all wells drilled or drilling.” Meeker and his associates and Sunray owned all of the oil and gas leases on such land. On September 2, 1958, the Oklahoma Corporation Commission entered its order establishing 40-acre drilling and spacing units for the above-described land, except for Robinson No. 1 Well, located on the Northeast Yi of the Northeast Yé of the Southwest Yi °f such Section 23 and ordered that such well should be the permitted well for the unit on which it was located.
As a further reason for not proceeding with drilling a well on the 30-day lease, Hurst testified that had the Meekers and their associates proceeded with the drilling of the well on the 20-acre location while the Sunray spacing application was pending before the Corporation Commission and had the Corporation Commission thereafter entered a 40-acre spacing order, the Commission would have penalized the well on the 20-acre location by reducing its allowable. Meeker testified that they would have been penalized on their allowable, had they proceeded with the well while Sunray’s application was pending.
Late in August, 1958, Lowder Well No. 1 was staked at a new location on the Southwest Yi °f the Northeast %, of Section 23, Township 16 North, Range 4 West. It was spudded in on September 7, 1958, and on September 9, 1958, it had reached a depth of 2,057 feet. Hurst had represented to Domestic that he had obtained from Lowder an extension of the 30-day lease, until October 1, 1958. Such extension had not been given. On September 9, 1958, a representative of Ambassador notified Brook and Domestic that Ambassador had a lease on the 160-acre tract. Domestic then shut down operations and advised Hurst of Ambassador’s claim. Brook and Hurst consulted Mr. C. D. Stinchecum, who was Domestic’s attorney, and he advised them he was fearful the 30-day lease had expired for failure to continue the drilling of the well on either the 10-acre or 20-acre location with due diligence. Stinch-ecum also advised Brook to endeavor to work out an arrangement with Ambassador that would protect the interest of Brook and his associates.
On September 10, 1958, Hurst entered into negotiations with Ambassador. On that date an oral agreement was reached between Hurst and Ambassador, by which Ambassador agreed to transfer the Ambassador lease to Domestic, insofar as it covered the 160-acre tract, reserving to Ambassador a %z of % overriding royalty interest, together with an oil payment of $2,500, payable out of 2%2 of % of the production. The agreement was consummated by an assignment from Ambassador to Domestic, executed September 15, 1958, and duly recorded September 30, 1958, in Book 390 at Page 592 of the Records of Logan County, Oklahoma.
Brook testified that Hurst made the agreement with Ambassador “for the benefit of everybody.” We think it quite obvious that by the word “everybody” he meant the working interest owners. The owners of the working interest were tenants in common. Brook owed a duty to his coowners of the working interest to protect their interests. Each of the working interest owners received an assignment of approximately the same proportion of the working interest under the Ambassador lease as he owned in the working interest under the 30-day lease. No assignments of overriding royalty interests were made by Domestic or by owners of the working interest to the Meekers or to Haun.
The assignment from Ambassador to Domestic contained the following stipulation:
“As an additional consideration for the assignment of the lease hereby assigned, Assignee hereby covenants and agrees:
“(a) That the lease hereby assigned is the effective oil and gas lease covering the land hereinabove described, and that the lease of record under which Assignee commenced drilling operations has terminated and is no longer effective; * *
Immediately after the oral agreement was made, Domestic resumed drilling Lowder Well No. 1 and completed it as a producing oil well on October 4,1958.
On October 8, 1958, Domestic assigned to Charles and Sybil Meeker, as joint tenants, an undivided % of the % working interest in the Ambassador lease, insofar as it covered the 160-acre tract above described. The assignment contained this provision:
“This assignment is made subject to the terms and provisions of the agreement dated October 8, 1958, between Assignor and Charles A. Meeker, and is subject to its proportionate part of an outstanding %2 overriding royalty interest and a $2,500.00 oil payment. By accepting this assignment assignees do not recognize the validity of the lease above described and expressly reserve the right to contest its validity. This assignment is subject to all of the provisions of the lease assignment from the Ambassador Oil Corporation to Domestic Oil Corporation recorded in Book 390, Page 592, in the office of the County Clerk of Logan County, Oklahoma.”
When Ambassador notified Domestic that it held a lease from Lowder on the land on which Domestic was drilling Low-der Well No. 1, Brook and Hurst undertook to contact Mr. Meeker at Albuquerque by telephone, ascertained he had gone to California, and were unable to locate him. A day or two after September 10, 1961, the date when the compromise agreement was reached with Ambassador, the Meekers were notified of the terms of such agreement. While Meeker expressed dissatisfaction with such compromise agreement, which was entered into for the benefit of all the working interest owners, he did not notify Brook, Domestic, or Ambassador that he repudiated the agreement, but stood by until the well was completed as a producing well. Thereafter, he accepted the assignment of October 8, 1958, from Domestic, in which he undertook to reserve his right to challenge the validity of Ambassador’s lease, with full knowledge of the terms and provisions of the assignment from Ambassador to Domestic and the reservations therein contained. After the well came in, Meeker signed division orders on the basis of the Ambassador lease and-the assignments thereof to Ambassador and the Meekers and the other owners of the working interest and received pipeline payments under such division orders.
The trial court held that the 30-day lease was an extension of the 5-year lease; that the operations on the 30-day lease on July 1, and 2, 1958, constituted the commencement of drilling of a well on such lease, but that such lease expired prior to the commencement of Low-der Well No. 1, by reason of the lessees’ failure to continue drilling operations with reasonable diligence. It also held that the Meekers were estopped to deny Ambassador’s rights to the overriding royalty and the oil payment reserved to it in its assignment to Domestic.
It held that Haun’s rights to his overriding royalty terminated when the 30-day lease expired and that Haun was not entitled by reason of any fiduciary relationship between him and Hurst, Brook, the Meekers and the other owners of the working interest to receive an overriding royalty of Yie of Vs of the oil and gas produced under the Ambassador lease. Judgment was entered accordingly and the Meekers and Haun have appealed.
I
The Claims of the Meekers — No. 6822
The first claim of the Meekers in Number 6822 is in substance an action to quiet title. The only interests in dispute are the Meekers’ claim to an overriding royalty interest of Via of % of the oil and gas produced under the 30-day lease and Ambassador’s claim to an overriding royalty interest of %2 of % of the oil and gas produced and to an overriding royalty interest of %2 of % of the oil and gas produced until it has received $2,500 therefrom. The working interest is not in dispute. The Meekers’ share of the working interest was substantially the same under the 30-day lease and under the assigned Ambassador lease. The Meekers requested a jury trial of their first and second claims in their second amended complaint. Their request was denied.
In Oklahoma the lessee’s interest under an oil and gas lease is neither a corporeal nor a possessory interest.in the land. While it is a presently vested interest in the land of another, it is an incorporeal interest, or a profit a prendre.
An oil and gas lease gives to the lessee an exclusive right — subject to legislative control to prevent waste, to secure the greatest ultimate recovery of oil and gas, and to protect correlative rights —to erect structures on the surface of the land covered by the lease, to explore for oil and gas by drilling wells through the underlying strata, to reduce to possession the oil and gas found and obtained through such wells, and thus acquire absolute title to such oil and gas as personal property.
An overriding royalty is a fractional interest in the gross production of oil and gas under a lease, in addition to the usual royalties paid to the lessor, free of any expense for exploration, drilling, development, operating, marketing and other costs incident to the production and sale of oil and gas produced from the lease.It is an interest carved out of the lessee’s share of the oil and gas, ordinarily called the working interest, as distinguished from the owner’s reserved royalty interest.
It is generally held that an overriding royalty is an interest in real propperty.
While ordinarily the overriding royalty reserved in the assignment of the lessee’s working interest carves out a share of the lessee’s interest in the oil and gas produced free from expense, in the absence of clear language manifesting an intent so to do, it does not create the relation of tenancy in common between the lessee and overriding royalty owner, nor give the latter the right to enter upon and develop the lease and produce oil and gas therefrom.
It follows that the owner of an overriding royalty interest does not have a corporeal or possessory interest in land, which could be the subject of an action in ejectment.
It is well settled that an action to quiet title is within the jurisdiction of a court of equity and as a general rule there is no right to a jury trial. However, one out of possession may not maintain an action in the Federal courts in an action to quiet title against one in possession if an action in ejectment would afford a plain, adequate and complete remedy at law.But Ambassador is not in possession and it has no possessory right under the overriding royalty reserved in its assignment and neither an action in ejectment nor other legal action against Ambassador would afford a plain, adequate and complete remedy at law to the Meekers.
Accordingly, we conclude that the Meekers’ first claim in their second amended complaint was a suit in equity and that they were not entitled to a jury trial on such claim.
The Meekers assert that the trial court erred in holding that the owners of the working interest under the 30-day lease failed to continue with due diligence the drilling of the well commenced during the primary term of such lease.
Due diligence is measured by what a reasonably prudent operator would do under the existing facts and circumstances, having regard for the interest of both the lessor and the lessee.
The term of the Lowder 5-year lease expired on June 3, 1958. Prior to that date, none of the owners of the working interest had done anything toward the development for oil and gas of the land covered by the lease. Realizing that the 5-year lease was about to expire, Hurst, in April, 1958, requested Lowder to give him the 30-day lease. Lowder complied with the request and executed the 30-day lease, the primary term of which terminated on July 3, 1958. From the shortness of the primary term and other surrounding facts and circumstances, it is reasonable to infer that Lowder and Hurst contemplated that the owners of the working interest under.such lease would promptly and without ■further delay develop the land for oil and ¡gas, acting with diligence and dispatch.
Within the primary term of the 30-day lease, the owners of the working ■interest did nothing more than stake out two drilling sites, construct roads and dig certain pits. Thereafter, they did nothing further until the latter part of August, 1958. They seek to excuse the delay by the fact that Sunray objected to the drilling of the well on the 30-day lease at either the 10-acre or 20-acre location and because of Sunray’s pending application for a spacing order.
In its application Sunray expressly stated that exceptions should be granted to all wells drilled or drilling within the area described in the application. The order of the Commission excepted the Robinson well and provided that it should be the permitted well for the unit on which it was located. Had the owners of the working interest continued the drilling of the well on the 20-acre location, commenced by them during the primary term of the lease, while the spacing application was pending, it is a reasonable assumption that such well would have been excepted from the spacing order. Moreover, as an alternative course, when Sunray objected to either the 10-acre or 20-acre location, they could have, within the primary term of the 30-day lease, proceeded with work on a 40-acre location that would have constituted the commencement of the drilling of a well; and when, thereafter, on July 16, 1958, Sun-ray applied to the Oklahoma Corporation Commission for the order establishing a 40-acre drilling and spacing unit, they could have proceeded safely with the drilling of the well on the 40-acre location. Because the producing sand was only about eight feet thick, it would not have been feasible or economical to drill wells in the area on a spacing unit of less than 40 acres and one well would drain the recoverable oil from the formation underlying 40 acres. The Corporation Commission so found in its spacing order. We are of the opinion there was no reasonable excuse, under the facts and circumstances, for the Meekers and their associates failing to proceed with the drilling of a well, either on a 20-acre or 40-acre location on the 30-day lease, while Sunray’s application was pending. The trial court applied the correct test and we cannot say that his finding that, under the existing facts and circumstances, the owners of the working interest in the 30-day lease failed to proceed with due diligence with the drilling of the well, which they commenced within the primary term, was erroneous. Accordingly, we conclude that the trial court correctly held that the 30-day lease expired by reason of the failui’e of the Meekers and the other owners of the working interest to continue the drilling of an oil and gas well with reasonable diligence after the expiration of the primary term of the lease.
The Meekers would have been entitled to a jury trial upon proper and timely request therefor of any issues remaining for determination on their second claim. However, the trial court, in the exercise of its equity jurisdiction, had determined that the 30-day lease had terminated and that the Meekers had no title to any interest under such lease. Since the Meekers had no title that could have been slandered by the acts of the defendants, no issues were left to be tried on the Meekers’ second claim.
The Meekers, with full knowledge of the facts, stood by and permitted American to continue the drilling of Lowder Well No. 1 under the provisions of the assignment from Ambassador to Domestic. Their working interest under the 30-day lease was in jeopardy, due to the fact that such lease may have terminated by the failure to diligently continue drilling of the well commenced during the primary term of such lease, an event which the trial court later held had happened. Their working interest was safeguarded and the risk of continuing the drilling of Lowder Well No. 1 under a doubtful title was eliminated by the assignment from Ambassador to Domestic, taken for the benefit of the Meekers and other owners of the working interest. Moreover, the Meekers signed division orders on the basis of their interest under the Ambassador lease and received payments in accordance with their working interest under such lease. From the foregoing, it will be seen that the Meekers accepted benefits under the Ambassador lease, with full knowledge of the facts, and we agree with the trial court that they thereby ratified the assignment from Ambassador to Domestic and are bound by the provisions thereof. A party cannot claim benefits under a transaction or instrument and at the same time repudiate its obligations.
II
The Haun Claim — No. 6823
The Haun claim is predicated on the contention that a fiduciary relationship existed between Haun, on the one hand, and Hurst, Brook, the Meekers and other owners of the working interest under the 30-day lease, on the other hand; and that by reason thereof the latter were obligated to protect the rights of Haun in any extension or renewal of the 30-day lease and that Haun was entitled to an overriding royalty of Vie of the working interest acquired by assignments of the Ambassador lease.
Ordinarily, an overriding royalty reserved in an assignment of a lease does not survive the termination of the assigned lease. The mere assignment of an oil and gas lease does not create a fiduciary relationship between the assignor and the assignee. However, such a relationship may arise by virtue of additional provisions in such assignment or in a contemporaneous agreement.
We hold there was no fiduciary relationship between Haun and the owners of the working interest when the Ambassador lease was assigned to Domestic or at any time thereafter.
We are of the opinion that the cases principally relied upon by counsel for Haun are clearly distinguishable on the facts from the instant case, as we shall now undertake to show.
In Probst v. Hughes, 143 Okl. 11, 286 P. 875, 69 A.L.R. 929, the facts were these: An overriding royalty was reserved in an assignment of an oil and gas lease. The assignment provided: “This reservation shall likewise apply as to all modifications, renewals of such lease or extensions that the assignee, his successors or assigns may secure.” Thereafter, the assignee developed the lease for gas and gas was produced from the leased premises subsequent to the primary term of the lease, but such production ceased on June 1, 1924. However, on April 23, 1924, and while the lease was still in force and effect, the assignees made an annual payment under the lease for gas produced therefrom. The court held that such payment, notwithstanding the cessation of production, continued the lease in effect until after November 10, 1924. On the latter date, the assignees secured another lease of the land covered by the original lease from the grantees of the original lessor. The court held that a fiduciary relationship existed between the assignors and assignees ; that the new lease was, in effect, an extension of the original lease, and that the new lease was charged with the overriding royalty reserved to the assignors in the original lease. In the instant case, a third party, who was a stranger to owners of the working inter-, est in the 30-day lease, obtained the second lease and the assignment to Domestic took place after the 30-day lease had terminated.
In Rees v. Briscoe, Okl., 315 P.2d 758, the court held that under the facts a fiduciary relationship existed between the assignor of oil and gas leases, who reserved an overriding royalty, and the as-signee thereof, and that such assignor was entitled to an overriding royalty under a second lease secured by the as-signee. In that case Rees, the original lessee in oil and gas leases, assigned the leases as to two tracts covered thereby, reserving an overriding royalty. On the same date the assignment was made, the assignee executed an agreement whereby it agreed it would commence drilling operations on one of the two tracts, on or before a specified date and drill to the Bartlesville sand. The assignee did commence such well and it was completed as a producer. Rees’s leases covered 7%o of the minerals in a third tract. While the assignee was engaged in drilling such well, Rees transferred the leases as to such third tract to such assignee. The last assignment reserved an overriding royalty, but did not contain a specific provision obligating the assignee to develop the third tract. However, the assignee orally promised the assignor to develop and drill wells on such third tract before the expiration of the leases. The as-signee failed so to do, but while such leases were in force and unexpired, obtained a renewal lease on such third tract. It did not provide for an ■ overriding royalty for the assignor. At the time the assignee was attempting to obtain the renewal of the leases, the owners of the minerals offered a renewal lease to the assignor, who declined it in favor of the assignee. After it obtained the renewal lease, the assignee drilled and obtained production on the third tract.
The facts in Rees v. Briscoe are materially different from the facts in the instant case, in that here there was no express agreement, oral or written, obligating Hurst or his successors to drill and develop either the 5-year lease or the 30-day lease; no such agreement may be implied from the assignment of an oil and gas lease, which reserves an overriding royalty; Haun did not have an opportunity to obtain a renewal lease from Lowder and hence did not waive such an opportunity in favor of Hurst and his successors in reliance upon the justified belief that they would protect his overriding royalty interest in any renewal lease; and the assignment to Domestic was made after the 30-day lease had expired.
In Oldland v. Gray, 10 Cir., 179 F.2d 408, the facts were these: In 1926, a group referred to in the opinion as the Oldland Group assigned their original prospecting permit on 1,760 acres of public lands, issued under the 1920 Leasing Act, 30 U.S.C.A. § 181 et seq., to one McLaughlin. The assignment provided that in the event leases were issued to the assignee under the permit and production was obtained, McLaughlin would pay to the Oldland Group a stipülated percentage of the market value of the oil and gas produced and saved from the leases. In the assignment McLaughlin expressly agreed “to carry on such drilling and operations on the said permit area as to fulfill the terms and conditions of the said permit within the period herein prescribed or any extensions thereof” and in such assignment it was further agreed that McLaughlin should have the right to terminate the agreement and discontinue operations, provided that on abandonment he would quitclaim all his right, title and interest in the permit to the Oldland Group and, if on the date of the reassignment he had not complied with the drilling requirements of the permit, he would pay them $2,000. In 1938 McLaughlin applied for a lease in exchange for the prospecting permit, as contemplated by the 1935 amendment to the 1920 Leasing Act, 49 Stat. 674. Such amendment authorized the holder of a valid prospecting permit to “exchange the same for a lease to the area described in the permit without proof of discovery, at a royalty of not less than 12% per ■centum.” In 1939 the exchange lease was issued to him. In his application therefor, McLaughlin acknowledged by.affidavit the interests of the Oldland Group in the permit and stated that such right would be transferred to any lease granted. In approving the issuance of the lease, the Commissioner of the Land Office expressly recited that it was granted in lieu of the existing permit. Thereafter, the lease was transferred by McLaughlin to Gray and one Levison, with knowledge of and subject to the conditions in the permit. In 1943 and before the expiration of the •5-year exchange lease, Levison and Gray applied for and received a new lease, covering the same area, based upon the preference rights granted to them by the amendment to the Leasing Act of July 29, 1942, 56 Stat. 726, which new lease was thereafter assigned to the Phillips Petroleum Company. McLaughlin did not drill the wells, as required by the permit, but kept the permit alive in "the name of his assignors. Phillips took the assignment of the new lease with knowledge of McLaughlin’s obligation under the original assignment of the underlying permit. The court held that a fiduciary relationship existed between the Oldland Group and McLaughlin and his successors in interest and that the Oldland Group were entitled to a royalty on the production from the new lease, as provided in the assignment of the permit.
Thus it will be seen that in Oldland v. Gray there was an express agreement by the assignee to drill and develop, and, as between the parties, the exchange lease took the place of the permit and was subject to the right reserved by the Oldland Group in the permit, and the new lease was obtained during the time the exchange lease was in effect and was a renewal or extension thereof, — factual elements not present in the instant case.
The owners of the working interest proceeded with the drilling of Lowder Well No. 1 in the belief that the 30-day lease was still in force and effect. Their failure to more diligently continue the drilling of the well commenced during the primary term of the 30-day lease was not due to bad faith on their part. They acted in good faith in securing the assignment of the Ambassador lease.
Since the 30-day lease had terminated before the assignment of the Ambassador lease to Domestic for the benefit of the owners of the working interest, and such lease was obtained by a stranger to the owners of the working interest in the 30-day lease, neither the Ambassador lease nor the assignment thereof could constitute an extension or renewal of a lease that had theretofore terminated and no longer existed. That conclusion is supported by the decision of the Supreme Court of Kansas in K & E Drilling, Inc. v. Warren, 185 Kan. 29, 340 P.2d 919, under facts not materially different from the facts in the instant case.
Accordingly, we hold, as did the trial court, that there was no extension or renewal of the 30-day lease and that Haun’s rights terminated on the expiration and termination of that lease.
The judgment entered in the
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_appel2_1_4
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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.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
Joe LEITMAN, d/b/a J.L. Surplus Sales, Surplus Sales, Plaintiffs-Appellants, v. Lieutenant General C. McAUSLAND, U.S.A.F. Director, Defense Logistics Agency, Colonel Raymond Agnor, U.S.A.F. Commander, Defense Reutilization and Marketing Service, Bruce W. Baird, Counsel and Debarring Official Defense Logistics Agency Reutilization Marketing Service, Defendants-Appellees.
No. 90-1823.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 7, 1991.
Decided May 21, 1991.
As Amended June 3, 1991.
Edward Leslie Cox, Cox and Cox, Virginia Beach, Va., for plaintiffs-appellants.
Michael Anson Rhine, Office of U.S. Atty., Norfolk, Va., argued (Theodore R. Pixley, Jr., Chief Trial Atty., Defense Reu-tilization and Marketing Service, Battle Creek, Mich., on brief), for defendants-ap-pellees.
Before SPROUSE and WILKINSON, Circuit Judges, and MULLEN, District Judge for the Western District of North Carolina, sitting by designation.
MULLEN, District Judge:
Appellants Joe Leitman and J.L. Surplus Sales filed a complaint on 27 April 1990, challenging an administrative decision dated 8 February 1990, debarring appellants for three years from purchasing surplus and foreign excess personal property from the federal government. The district court affirmed the agency findings and denied the requested injunction against the debarment. Appellants filed a timely appeal challenging the dismissal of the complaint by the district court. Having reviewed the issues raised by appellants, we affirm the judgment of the district court.
I.
Appellant Joe Leitman owns and operates J.L. Surplus Sales, whose business consists primarily of purchasing surplus property from the Department of Defense for later resale. Appellee Bruce W. Baird is counsel for the Defense Logistics Agency and the Defense Reutilization and Marketing Service. Appellee Baird served as the hearing officer at the debarment proceedings against appellants. Appellee Colonel Raymond Agnor commands the Defense Reutilization and Marketing Service, which is the primary field level operation for the Defense Logistics Agency and which conducts the surplus sales. Appellee Lieutenant General C. McAusland supervises the Defense Logistics Agency, under which the Defense Reutilization and Marketing Service operates. The Defense Logistics Agency is a subdivision of the Department of Defense.
Appellant Baird’s notice of debarment of appellants dated 8 February 1990 based its decision on three incidents of anticompeti-tive collusive bidding. Appellee Baird first found that on 24 March 1987, Leitman entered into a collusive bidding agreement by obtaining an agreement from another bidder not to bid against him on Lot 133. Second, Baird found that on 10 August 1987, Leitman made an agreement with another potential bidder that he would not bid against the other bidder on certain lots and that the other bidder would not bid against Leitman on other lots. Finally, Baird found that on 24 September 1987, Leitman entered into a collusive bidding agreement with Alan Hyman under which Leitman would not bid against Hyman on certain items and in exchange would receive a portion of the profits from the resale.
Appellee Baird reached his decision after a hearing on these matters. Appellants were present and represented by counsel. David Norris represented the government at the hearing, and Baird served as the hearing officer. The government presented two witnesses for testimony and introduced several written exhibits. Leitman testified on his own behalf.
In a decision after the close of the hearing, Baird issued a notice of debarment on the three grounds set forth above. He concluded that this misconduct by Leitman provided a reason for debarment under Federal Acquisition Regulation 9.406-2(c). Baird found that appellant J.L. Surplus Sales was an affiliate of Leitman and also debarred J.L. Surplus Sales.
Appellants requested reconsideration of the order of debarment, including a reduction of the three-year debarment period. Baird denied the request for reconsideration.
II.
This court reviews the decision of the administrative agency on the same standard applied by the district court. Pursuant to 5 U.S.C. § 706, a reviewing court shall set aside agency action that is found to be arbitrary, capricious, an abuse of discretion, contrary to law or unsupported by substantial evidence.
The procedures for debarment are found in 48 C.F.R. §§ 9.04, et seq. They provide in pertinent part that a purchaser can- be debarred for, among other reasons, conviction of or civil judgment for a violation of a federal or state antitrust statute relating to the submission of offers or “any other cause of so serious or compelling a nature that it affects the present responsibility of a government contractor or subcontractor.” 48 C.F.R. § 9.406-2(a)(2) and 9.406-(2)(c).
III.
Appellants have raised five challenges to the order of debarment and affirmance by the district court. The court will discuss these grounds seriatim.
A. Role of Baird as Hearing Officer
Appellants argue that Baird violated provisions of the Administrative Procedure Act (APA) by acting as both prosecutor and debarring official at the hearing. Appellants base this argument on 5 U.S.C. § 554(d), which provides that an employee engaged in the investigative or prosecution functions for an agency in a ease may not participate in the decision on that or a factually related case. Appellants argue that Baird took over the role of prosecuting officer at the hearing and initiated an ex parte communication in violation of 5 U.S.C. § 554(d)(1).
It is not clear from the record and briefs whether 5 U.S.C. § 554 applies to this case. The statute states that it applies in a case of an “adjudication required by statute to be determined on the record after opportunity for an agency hearing_” 5 U.S.C. § 554(a). The parties have shown no statute requiring the debarment hearing to be on the record; however, a judicial gloss has found that these provisions also apply to certain hearings required by the Constitution, rather than a statute. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950). In this case, the court can avoid the thorny issue of whether an adjudication on the record complying with 5 U.S.C. § 554 is constitutionally mandated by assuming, without deciding, that the statute applies to this case.
Reviewing the transcript of the hearing, the court finds that Baird did participate in the questioning of witnesses; however, David Norris represented the government at the hearing and served as the prosecuting officer. Baird’s questioning was similar to that generally permitted a trial judge. Most of his questions were asked for clarification or to move the proceedings along. His questioning was not so extensive as to place him in the position of prosecuting officer, as claimed by appellants.
Appellants also challenge the actions of Baird regarding the transcript of a telephone conversation, which was evidence of one of the collusive bidding agreements. At the hearing, counsel for appellants argued that the telephone conversation had been improperly recorded and was inadmissible because of a Virginia statute. Baird stated that he would check with officials to see whether the taping had been authorized and that he would let the parties know his findings. Baird satisfied himself that proper clearance had been obtained, but did not notify appellants as to his inquiry and the response prior to issuing a notice of debarment.
Appellants claim that Baird should not have considered the transcript of the telephone conversation because Leitman was unaware that the conversation was being recorded. Therefore, according to appellants, the transcript could not be admitted into evidence pursuant to Va.Code § 8.01-420.2.
A state evidentiary rule, such as that cited by appellants, does not control admissibility of evidence in federal proceedings. See, e.g., United States v. Horton, 601 F.2d 319 (7th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); United States v. Keen, 508 F.2d 986 (9th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). In a hearing before a federal agency, federal procedural law would apply. Under federal law, it was sufficient that one party to the conversation, in this case, the government’s informant, knew that the conversation was being taped. 18 U.S.C. § 2511(2)(c).
Baird noted that he would check with officials regarding the clearance given for the taping, apparently unaware that the recording was permissible simply because the informant was aware that the conversation was being recorded. The clearance that Baird checked for and later failed to notify the parties of was immaterial in light of the federal statute on the matter. Therefore, any failure by Baird to notify the parties as promised, although regrettable, was harmless error. Therefore, the court finds no merit in this challenge.
B. Lack of Sworn Testimony
Appellants complain that there was a total lack of sworn testimony upon which Baird could base his decision. Appellants argue that the APA requires that an oath be administered to the witnesses. At the proceeding, Baird did not administer an oath, but warned all witnesses that any representations made in the proceedings were official statements subject to the penalties for false statements provided in 18 U.S.C. § 1001. Appellants made no objection to this procedure at the hearing.
Again assuming for sake of argument that the statute applies to this proceeding, it provides only that the officer proceeding at the hearing “may” administer oaths and affirmations. 5 U.S.C. § 556(c)(1).
The APA does not require that the testimony received be sworn under oath. Baird’s warnings of the penalties for a false statement were clearly sufficient to notify witnesses of the gravity of the hearings and the need for complete truth. Furthermore, appellants raised no objection to the proceeding and make no offer of evidence that would have been different had the testimony been sworn under oath. Therefore, the court finds no error in this portion of the proceeding.
C. Lack of Conviction or Judgment on the Agreements
Appellants’ third ground for reversal is that Baird could not base a debarment upon any collusive bidding agreement without a conviction or civil judgment on the agreement. This argument is without merit.
48 C.F.R. § 9.406-2 provides alternative causes for debarment. Section (a) allows debarment upon conviction of or civil judgment for various acts, including violation of certain federal or state antitrust statutes. Baird based his debarment of appellants upon 48 C.F.R. § 9.406-2(c), which permits debarment for “any other cause so serious or compelling a nature that it affects the present responsibility of a contractor....” The different causes for debarment are important and are divided under the regulation because conviction of or civil judgment for a charge listed in the regulation allows a debarment without any hearing. 48 C.F.R. § 9.406-3(b)(2). The regulations understandably allow a conviction or civil judgment to provide the basis for a debarment with no further proceedings. This is why section (a) of 48 C.F.R. § 9.406-2, dealing with convictions or judgments, is set apart from section (c), which was relied upon by Baird. This statutory structure and the language of the regulations clearly do not envision a requirement that a conviction or civil judgment be obtained before a debarment proceeding based on collusive bidding agreements be initiated. The appellants’ argument on this point warrants no further consideration.
D. Lack of Overt Act
Appellants have argued that Baird failed to find an overt act in furtherance of the collusive bidding agreements and that such a finding is necessary for the debarment.
It does not appear from the record that appellants raised this point at the debarring proceedings. In any event, the court finds that no overt act is required under the regulations. The collusive bidding agreement itself is sufficient to satisfy the requirements of 48 C.F.R. § 9.406-2(c). Simply entering into a collusive bidding agreement is sufficient ground for debarment from participating in surplus sales. There is no criminal charge of a conspiracy here, which might raise a requirement for an overt act in furtherance of the conspiracy.
E. Substantial Evidence to Support the Decision
Finally, appellants argue that there was not substantial evidence for the findings by Baird of three collusive bidding agreements. Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Appellants argue that all the evidence before Baird was mere hearsay, which is insufficient to support the decision of the agency.
It is undisputed that an adjudicative official at an administrative hearing can consider hearsay. Evosevich v. Consolidated Coal Co., 789 F.2d 1021 (3d Cir. 1986); Williams v. U.S. Dept. of Trans., 781 F.2d 1573 (11th Cir.1986). It is also clear that hearsay alone may not be sufficient as a substantial basis for a decision. Consolidated Edison Co. v. NLRB, 305 U.S. at 230, 59 S.Ct. at 217. The Supreme Court has explained that hearsay has not been rejected for consideration at administrative hearings, but only hearsay without a basis in evidence having rational probative value. Richardson v. Perales, 402 U.S. at 407, 91 S.Ct. at 1430.
Upon review of the transcript and exhibits, it is clear that there is more than a substantial basis for each of the three determinations by Baird. First, Special Agent Christensen and informant Lusk gave testimony about the collusive bidding agreement on 24 March 1987. They reviewed their debriefing notes and stated that the notes were true and accurate. They were subject to cross-examination. Baird did not accept their testimony in toto, but found that as a result of the collusive agreement, Leitman purchased only one lot rather than the several lots detailed in the debriefing notes. On this charge, Baird based his opinion not only on the debriefing notes, but on the testimony of the witnesses and their identification and verification of the debriefing notes. The fact that he accepted only a portion of their testimony does not negate the use of other portions of their testimony. Thus, the portions accepted by Baird provide a sufficient basis for the decision.
The evidence on the second charge of a collusive bidding agreement on 10 August 1987 was the testimony of informant Lusk, who identified the transcript of the telephone conversation in which the agreement was made. He stated that the transcript was true and accurate. Lusk also stated that he recognized the voice on the telephone as that of Leitman. Again, the evidence before Baird was more than hearsay. The transcript of the telephone conversation with the live testimony more than adequately provides a substantial basis for the decision that Leitman had entered into a collusive bidding agreement on this date.
Finally, regarding the charge of collusive bidding on 24 September 1987, informant Lusk testified that he overheard Leitman reach an agreement with another bidder, Alan Hyman, not to bid on certain items. Lusk also testified that he spoke with Hy-man later to verify how the agreement was made. In addition, Lusk identified his debriefing notes and stated that they were true and accurate. The live testimony of Lusk before Baird in itself was substantial evidence supporting the decision. Baird could also have properly considered the debriefing notes identified and verified by Lusk at the hearing. As a result, there is no question but that substantial evidence existed for Baird’s conclusion on the third charge of collusive bidding.
Appellants complain that, regarding the third charge, the government should have called Alan Hyman himself to testify. The record reflects that appellants made no objection to the absence of Hyman at the hearing, nor did they make an offer of what testimony he could present. Upon this record, the court finds no obligation by the government to call this potential witness.
The court finds that there was substantial evidence to support the decision of ap-pellee Baird as to all three charges upon which his decision was based.
IV.
The court has reviewed all claims raised by appellants and finds no basis for overturning the decision of the agency in its debarment proceedings. Therefore, the decision of the district court affirming the agency determination is
AFFIRMED.
. The regulation is found in 48 C.F.R. § 9.406-2(c) and provides for a debarment for "[a]ny other cause of so serious or compelling a nature that it affects the present responsibility of a government contractor or subcontractor."
. Appellants have not challenged the portions of the debarment decision finding that Leitman controls or has the power to control J.L. Surplus Sales and that, if Leitman was properly debarred, then J.L. Surplus Sales was also properly debarred.
.The statute provides in part that the reviewing court shall 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;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
5 U.S.C. § 706(2).
. In Wong Yang Sung, the Supreme Court concluded that the APA provisions applied to an administrative hearing regarding deportation. It found that the statute excepted only hearings of less than statutory authority and applied to hearings required by the Constitution.
. Va.Code § 8.01-420.2 provides in part: "No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless all parties to the conversation were aware the conversation was being recorded."
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
COMMISSIONER OF INTERNAL REVENUE v. DUBERSTEIN et ux.
No. 376.
Argued March 23, 1960.
Decided June 13, 1960.
Philip Elman argued the cause for petitioner in No. 376. On the brief were Solicitor General Rankin, Assistant Attorney General Rice and Wayne G. Barnett.
Clendon H. Lee argued the cause for petitioners in No. 546. With him on the brief were John C. Farber, William F. Snyder and Theodore Q. Childs.
Sidney G. Kusworm argued the cause and filed a brief for respondents in No. 376.
Wayne G. Barnett argued the cause for the United States in No. 546. With him on the brief were Solicitor General Rankin and Assistant Attorney General Rice.
Together with No. 546, Stanton et ux. v. United States, on certiorari to the United States Court of Appeals for the Second Circuit, argued March 24, 1960.
Mr. Justice Brennan
delivered the opinion of the Court.
These two cases concern the provision of the Internal Revenue Code which excludes from the gross income of an income taxpayer “the value of property acquired by gift.” They pose the frequently recurrent question whether a specific transfer to a taxpayer in fact amounted to a “gift” to him within the meaning of the statute. The importance to decision of the facts of the cases requires that we state them in some detail.
No. 376, Commissioner v. Duberstein. The taxpayer, Duberstein, was president of the Duberstein Iron & Metal Company, a corporation with headquarters in Dayton, Ohio. For some years the taxpayer’s company had done business with Mohawk Metal Corporation, whose headquarters were in New York City. The president of Mohawk was one Berman. The taxpayer and Berman had generally used the telephone to transact their companies' business with each other, which consisted of buying and selling metals. The taxpayer testified, without elaboration, that he knew Berman “personally” and had known him for about seven years. From time to time in their telephone conversations, Ber-man would ask Duberstein whether the latter knew of potential customers for some of Mohawk’s products in which Duberstein’s company itself was not interested. Duberstein provided the names of potential customers for these items.
One day in 1951 Berman telephoned Duberstein and said that the information Duberstein had given him had proved so helpful that he wanted to give the latter a present. Duberstein stated that Berman owed him nothing. Berman said that he had a Cadillac as a gift for Duberstein, and that the latter should send to New York for it; Berman insisted that Duberstein accept the car, and the latter finally did so, protesting however that he had not intended to be compensated for the information. At the time Duberstein already had a Cadillac and an Oldsmobile, and felt that he did not need another car. Duberstein testified that he did not think Berman would have sent him the Cadillac if he had not furnished him with information about the customers. It appeared that Mohawk later deducted the value of the Cadillac as a business expense on its corporate income tax return.
Duberstein did not include the value of the Cadillac in gross income for 1951, deeming it a gift. The Commissioner asserted a deficiency for the car’s value against him, and in proceedings to review the deficiency the Tax Court affirmed the Commissioner’s determination. It said that “The record is significantly barren of evidence revealing any intention on the part of the payor to make a gift. . . . The only justifiable inference is that the automobile was intended by the payor to be remuneration for services rendered to it by Duberstein.” The Court of Appeals for the Sixth Circuit reversed. 265 F. 2d 28.
No. 546, Stanton v. United States. The taxpayer, Stanton, had been for approximately 10 years in the employ of Trinity Church in New York City. He was comptroller of the Church corporation, and president of a corporation, Trinity Operating Company, the church set up as a fully owned subsidiary to manage its real estate holdings, which were more extensive than simply the church property. His salary by the end of his employment there in 1942 amounted to $22,500 a year. Effective November 30, 1942, he resigned from both positions to go into business for himself. The Operating Company’s directors, who seem to have included the rector and vestrymen of the church, passed the following resolution upon his resignation: “Be it Resolved that in appreciation of the services rendered by Mr. Stanton ... a gratuity is hereby awarded to him of Twenty Thousand Dollars, payable to him in equal instalments of Two Thousand Dollars at the end of each and every month commencing with the month of December, 1942; provided that, with the discontinuance of his services, the Corporation of Trinity Church is released from all rights and claims to pension and retirement benefits not already accrued up to November 30, 1942.”
The Operating Company’s action was later explained by one of its directors as based on the fact that, “Mr. Stanton was liked by all of the Vestry personally. He had a pleasing personality. He had come in when Trinity’s affairs were in a difficult situation. He did a splendid piece of work, we felt. Besides that ... he was liked by all of the members of the Vestry personally.” And by another: “[W]e were all unanimous in wishing to make Mr. Stanton a gift. Mr. Stanton had loyally and faithfully served Trinity in a very difficult time. We thought of him in the highest regard. We understood that he was going in business for himself. We felt that he was entitled to that evidence of good will.”
On the other hand, there was a suggestion of some ill-feeling between Stanton and the directors, arising out of the recent termination of the services of one Watkins, the Operating Company’s treasurer, whose departure was evidently attended by some acrimony. At a special board meeting on October 28, 1942, Stanton had intervened on Watkins’ side and asked reconsideration of the matter. The minutes reflect that “resentment was expressed as to the 'presumptuous’ suggestion that the action of the Board, taken after long deliberation, should be changed.” The Board adhered to its determination that Watkins be separated from employment, giving him an opportunity to resign rather than be discharged. At another special meeting two days later it was revealed that Watkins had not resigned; the previous resolution terminating his services was then viewed as effective; and the Board voted the payment of six months’ salary to Watkins in a resolution similar to that quoted in regard to Stanton, but which did not use the term “gratuity.” At the meeting, Stanton announced that in order to avoid any such embarrassment or question at any time as to his willingness to resign if the Board desired, he was tendering his resignation. It was tabled, though not without dissent. The next week, on November 5, at another special meeting, Stanton again tendered his resignation which this time was accepted.
The “gratuity” was duly paid. So was a smaller one to Stanton's (and the Operating Company's) secretary, under a similar resolution, upon her resignation at the same time. The two corporations shared the expense of the payments. There was undisputed testimony that there were in fact no enforceable rights or claims to pension and retirement benefits which had not accrued at the time of the taxpayer’s resignation, and that the last proviso of the resolution was inserted simply out of an abundance of caution. The taxpayer received in cash a refund of his contributions to the retirement plans, and there is no suggestion that he was entitled to more. He was required to perform no further services for Trinity after his resignation.
The Commissioner asserted a deficiency against the taxpayer after the latter had failed to include the payments in question in gross income. After payment of the deficiency and administrative rejection of a refund claim, the taxpayer sued the United States for a refund in the District Court for the Eastern District of New York. The trial judge, sitting without a jury, made the simple finding that the payments were a “gift,” and judgment was entered for the taxpayer. The Court of Appeals for the Second Circuit reversed. 268 F. 2d 727.
The Government, urging that clarification of the problem typified by these two eases was necessary, and that the approaches taken by the Courts of Appeals for the Second and the Sixth Circuits were in conflict, petitioned for certiorari in No. 376, and acquiesced in the taxpayer’s petition in No. 546. On this basis, and because of the importance of’the question in the administration of the income tax laws, we granted certiorari in both cases. 361 U. S. 923.
The exclusion of property acquired by gift from gross income under the federal income tax laws was made in the first income tax statute passed under the authority of the Sixteenth Amendment, and has been a feature of the income tax statutes ever since. The meaning of the term “gift” as applied to particular transfers has always been a matter of contention. Specific and illuminating legislative history on the point does not appear to exist. Analogies and inferences drawn from other revenue provisions, such as the estate and gift taxes, are dubious. See Lockard v. Commissioner, 166 F. 2d 409. The meaning of the statutory term has been shaped largely by the decisional law. With this, we turn to the contentions made by the Government in these cases.
First. The Government suggests that we promulgate a new “test” in this area to serve as a standard to be applied by the lower courts and by the Tax Court in dealing with the numerous cases that arise. We reject this invitation. We are of opinion that the governing principles are necessarily general and have already been spelled out in the opinions of this Court, and that the problem is one which, under the present statutory framework, does not lend itself to any more definitive statement that would produce a talisman for the solution of concrete cases. The cases at bar are fair examples of the settings in which the problem usually arises. They present situations in which payments have been made in a context with business overtones — an employer making a payment to a retiring employee; a businessman giving something of value to another businessman who has been of advantage to him in his business. In this context, we review the law as established by the prior cases here.
The course of decision here makes it plain that the statute does not use the term “gift” in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a “gift” within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 730. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U. S. 34, 41, it is not a gift. And, conversely, “[w]here the.payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U. S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U. S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “intention.” Bogardus v. Commissioner, 302 U. S. 34, 43. “What controls is the intention with which payment, however voluntary, has been made.” Id., at 45 (dissenting opinion) ,
The Government says that this “intention” of the transferor cannot mean what the cases on the common-law concept of gift call “donative intent.” With that we are in agreement, for our decisions fully support this. Moreover, the Bogardus case itself makes it plain that the donor’s characterization of his action is not determinative — that there must be an objective inquiry as to whether what is called a gift amounts to it in reality. 302 U. S., at 40. It scarcely needs adding that the parties’ expectations or hopes as to the tax treatment of their conduct in themselves have nothing to do with the matter.
It is suggested that the Bogardus criterion would be more apt if rephrased in terms of “motive” rather than “intention.” We must confess to some skepticism as to whether such a verbal mutation would be of any practical consequence. We take it that the proper criterion, established by decision here, is one that inquires what the basic reason for his conduct was in fact — the dominant reason that explains his action in making the transfer. Further than that we do not think it profitable to go.
Second. The Government’s proposed “test,” while apparently simple and precise in its formulation, depends frankly on a set of “principles” or “presumptions” derived from the decided cases, and concededly subject to various exceptions; and it involves various corollaries, which add to its detail. Were we to promulgate this test as a matter of law, and accept with it its various presuppositions and stated consequences, we would be passing far beyond the requirements of the cases before us, and would be painting on a large canvas with indeed a broad brush. The Government derives its test from such propositions as the following: That payments by an employer to an employee, even though voluntary, ought, by and large, to be taxable ; that the concept of a gift is inconsistent with a payment’s being a deductible business expense; that a gift involves “personal” elements; that a business corporation cannot properly make a gift of its assets. The Government admits that there are exceptions and qualifications to these propositions. We think, to the extent they are correct, that these propositions are not principles of law but rather maxims of experience that the tribunals which have tried the facts of cases in this area have enunciated in explaining their factual determinations. Some of them simply represent truisms: it doubtless is, statistically speaking, the exceptional payment by an employer to an employee that amounts to a gift. Others are overstatements of possible evidentiary inferences relevant to a factual determination on the totality of circumstances in the case: it is doubtless relevant to the over-all inference that the transferor treats a payment as a business deduction, or that the transferor is a corporate entity. But these inferences cannot be stated in absolute terms. Neither factor is a shibboleth. The taxing statute does not make nondeductibility by the transferor a condition on the “gift” exclusion; nor does it draw any distinction, in terms, between transfers by corporations and individuals, as to the availability of the “gift” exclusion to the transferee. The conclusion whether a transfer amounts to a “gift” is one that must be reached on consideration of all the factors.
Specifically, the trier of fact must be careful not to allow trial of the issue whether the receipt of a specific payment is a gift to turn into a trial of the tax liability, or of the propriety, as a matter of fiduciary or corporate law, attaching to the conduct of someone else. The major corollary to the Government’s suggested “test” is that, as an ordinary matter, a payment by a corporation cannot be a gift, and, more specifically, there can be no such thing as a “gift” made by a corporation which would allow it to take a deduction for an ordinary and necessary business expense. As we have said, we find no basis for such a conclusion in the statute; and if it were applied as a determinative rule of “law,” it would force the tribunals trying tax cases involving the donee’s liability into elaborate inquiries into the local law of corporations or into the peripheral deductibility of payments as business expenses. The former issue might make the tax tribunals the most frequent investigators of an important and difficult issue of the laws of the several States, and the latter inquiry would summon one difficult and delicate problem of federal tax law as an aid to the solution of another. Or perhaps there would be required a trial of the vexed issue whether there was a “constructive” distribution of corporate property, for income tax purposes, to the corporate agents who had sponsored the transfer. These considerations, also, reinforce us in our conclusion that while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they, nor any more detailed statement than has been made, can be laid down as a matter of law.
Third. Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U. S. 227; Commissioner v. Heininger, 320 U. S. 467, 475; United States v. Yellow Cab Co., 338 U. S. 338, 341; Bogardus v. Commissioner, supra, at 45 (dissenting opinion).
This conclusion may not satisfy an academic desire for tidiness, symmetry and precision in this area, any more than a system based on the determinations of various fact-finders ordinarily does. But we see it as implicit in the present statutory treatment of the exclusion for gifts, and in the variety of forums in which federal income tax cases can be tried. If there is fear of undue uncertainty or overmuch litigation, Congress may make more precise its treatment of the matter by singling out certain factors and making them determinative of the matter, as it has done in one field of the “gift” exclusion’s former application, that of prizes and awards. Doubtless diversity of result will tend to be lessened somewhat since federal income tax decisions, even those in tribunals of first instance turning on issues of fact, tend to be reported, and since there may be a natural tendency of professional triers of fact to follow one another’s determinations, even as to factual matters. But the question here remains basically one of fact, for determination on a case-by-case basis.
One consequence of this is that appellate review of determinations in this field must be quite restricted. Where a jury has tried the matter upon correct instructions, the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue. Baker v. Texas & Pacific R. Co., supra, at 228. Where the trial has been by a judge without a jury, the judge’s findings must stand unless “clearly erroneous.” Fed. Rules Civ. Proc., 52 (a). “A finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U. S. 364, 395. The rule itself applies also to factual inferences from undisputed basic facts, id., at 394, as will on many occasions be presented in this area. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605, 609-610. And Congress has in the most explicit terms attached the identical weight to the findings of the Tax Court. I. R. C., § 7482 (a).
Fourth. A majority of the Court is in accord with the principles just outlined. And, applying them to the Duberstein case, we are in agreement, on the evidence we have set forth, that it cannot be said that the conclusion of the Tax Court was “clearly erroneous.” It seems to us plain. that as .trier of the facts it was warranted in concluding that despite the characterization of the transfer of the Cadillac by the parties and the absence of any obligation, even of a moral nature, to make it, it was at bottom a recompense for Duberstein’s past services, or an inducement for him to be of further service in the future. We cannot say with the Court of Appeals that such a conclusion was “mere suspicion” on the Tax Court’s part. To us it appears based in the sort of informed experience with human affairs that fact-finding tribunals should bring to this task.
As to Stanton, we are in disagreement. To four of us, it is critical here that the District Court as trier of fact made only the simple and unelaborated finding that the transfer in question was a “gift.” To be sure, conciseness is to be strived for, and prolixity avoided, in findings; but, to the four of us, there comes a point where findings become so sparse and conclusory as to give no revelation of what the District Court’s concept of the determining facts and legal standard may be. See Matton Oil Transfer Corp. v. The Dynamic, 123 F. 2d 999, 1000-1001. Such conclusory, general findings do not constitute compliance with Rule 52’s direction to “find the facts specially and state separately . . . conclusions of law thereon.” While the standard of law in this area is not a complex one, we four think the unelaborated finding of ultimate fact here cannot stand as a fulfillment of these requirements. It affords the reviewing court not the semblance of an indication of the legal standard with which the trier of fact has approached his task. For all that appears, the District Court may have viewed the form of the resolution or the simple absence of legal consideration as conclusive. While the judgment of the Court of Appeals cannot stand, the four of us think there must be further proceedings in the District Court looking toward new and adequate findings of fact. In this, we are joined by Mr. Justice Whittaker, who agrees that the findings were inadequate, although he does not concur generally in this opinion.
Accordingly, in No. 376, the judgment of this Court is that the judgment of the Court of Appeals is reversed, and in No. 546, that the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Harlan concurs in the result in No. 376. In No. 546, he would affirm the judgment of the Court of Appeals for the reasons stated by Mr. Justice Frankfurter.
Mr. Justice Whittaker, agreeing with Bogardus that whether a particular transfer is or is not a “gift” may involve “a mixed question of law and fact,” 302 U. S., at 39, concurs only in the result of this opinion.
Mr. Justice Douglas dissents, since he is of the view that in each of these two cases there was a gift under the test which the Court fashioned nearly a quarter of a century ago in Bogardus v. Commissioner, 302 U. S. 34.
The operative provision in the cases at bar is § 22 (b) (3) of the 1939 Internal Revenue Code. The corresponding provision of the present Code is § 102 (a).
In both cases the husband will be referred to as the taxpayer, although his wife joined with him in joint tax returns.
See note 14, infra.
§ H.B., c. 16, 38 Stat. 167.
The first case of the Board of Tax Appeals officially reported in fact deals with the problem. Parrott v. Commissioner, 1 B. T. A. 1.
The Government’s proposed test,is stated: “Gifts should be defined as transfers of property made for personal as distinguished from business reasons.”
The cases including “tips” in gross income are classic examples of this. See, e. g., Roberts v. Commissioner, 176 F. 2d 221.
The parts of the Bogardus opinion which we touch on here are the ones we take to be basic to its holding, and the ones that we read as stating those governing principles which it establishes. As to them we see little distinction between the views of the Court and those taken in dissent in Bogardus. The fear expressed by the dissent at 302 U. S., at 44, that the prevailing opinion “seems” to hold “that every payment which in any aspect is a gift is . . . relieved of any tax” strikes us now as going beyond what the opinion of the Court held in fact. In any event, the Court’s opinion in Bogardus does not seem to have been so interpreted afterwards. The principal difference, as we see it, between the Court’s opinion and the dissent lies in the weight to be given the findings of the trier of fact.
Justice Cardozo once described in memorable language the inquiry into whether an expense was an “ordinary and necessary” one of a business: “One struggles in vain for any verbal formula that will supply a ready touchstone. The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.” Welch v. Helvering, 290 U. S. 111, 115. The same comment well fits the issue in the cases at bar.
Cf., e. g., Nelson v. Commissioner, 203 F. 2d 1.
In Bogardus, the Court was divided 5 to 4 as to the scope of review to be extended the fact-finder’s determination as to a specific receipt, in a context like that of the instant cases. The majority held that such a determination was “a conclusion of law or at least a determination of a mixed question of law and fact.” 302 U. S., at 39. This formulation it took as justifying it in assuming a fairly broad standard of review. The dissent took a contrary view. The approach of this part of the Court’s ruling in Bogardus, which we think was the only part on which there was real division among the Court, see note 8, supra, has not been afforded subsequent respect here. In Heininger, a question presenting at the most elements no more factual and untechnical than those here — that of the “ordinary and necessary” nature of a business expense — was treated as one of fact. Cf. note 9, supra. And in Dobson v. Commissioner, 320 U. S. 489, 498, n. 22, Bogardus was adversely criticized, insofar as it treatsd the matter as reviewable as one of law. While Dobson is, of course, no longer the law insofar as it ordains a greater weight to be attached to the findings of the Tax Court than to those of any other fact-finder in a tax litigation, see note 13, infra, we think its criticism of this point in the Bogardus opinion is sound in view of the dominant importance of factual inquiry to decision of these cases.
I. R. C., § 74, which is a provision new with the 1954 Code. Previously, there had been holdings that such receipts as the “Pot O’ Gold” radio giveaway, Washburn v. Commissioner, 5 T. C. 1333, and the Ross Essay Prize, McDermott v. Commissioner, 80 U. S. App. D. C. 176, 150 F. 2d 585, were “gifts.” Congress intended to obviate such rulings. S. Rep. No. 1622, 83d Cong., 2d Sess., p. 178. We imply no approval of those holdings under the general standard of the “gift” exclusion. Cf. Robertson v. United States, supra.
“The United States Courts of Appeals shall have exclusive jurisdiction to review the decisions of the Tax Court ... in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury. . . .” The last words first came into the statute through an amendment to § 1141 (a) of the 1939 Code in 1948 (§36 of the Judicial Code Act, 62 Stat. 991). The purpose of the 1948 legislation was to remove from the law the favored position (in comparison with District Court and Court of Claims rulings in tax matters) enjoyed by the Tax Court under this Court’s ruling in Dobson v. Commissioner, 320 U. S. 489. Cf. note 11, supra. See Grace Bros., Inc., v. Commissioner, 173 F. 2d 170, 173.
The “Findings of Fact and Conclusions of Law” were made orally, and were simply: “The resolution of the Board of Directors of the Trinity Operating Company, Incorporated, held November 19, 1942, after the resignations had been accepted of the plaintiff from his positions as controller of the corporation of the Trinity Church, and the president of the Trinity Operating Company, Incorporated, whereby a gratuity was voted to the plaintiff, Allen [sfc] D. Stanton, in the amount of $20,000 payable to him in monthly installments of $2,000 each, commencing with the month of December, 1942, constituted a gift to the taxpayer, and therefore need not have been reported by him as income for the taxable years 1942, or 1943.”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Appellee, v. William Edgar ROGERS, Appellant. UNITED STATES of America, Appellee, v. DeLinda Vianne ROGERS, Appellant.
Nos. 90-1237, 90-2222.
United States Court of Appeals, Eighth Circuit.
Submitted April 8, 1991.
Decided July 23, 1991.
Rehearing and Rehearing en banc Denied Aug. 29, 1991.
Calvin Holden, Springfield, Mo., argued, for appellant DeLinda Vianne Rogers.
Gregory K. Johnson, Springfield, Mo., argued, for appellee.
Before LAY, Chief Judge, FRIEDMAN, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
The HONORABLE DANIEL M. FRIEDMAN, Senior Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation.
PER CURIAM.
These consolidated appeals arise from a scheme to manufacture and distribute methamphetamine. In case 90-1237, William Rogers pled guilty to a conspiracy to manufacture methamphetamine and phe-nyl-2-propanone (“P2P”) and to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) (1988). He also pled guilty to possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c) (1988). He later sought to withdraw his plea but his motion was denied. Rogers’ counsel on appeal argues Rogers had ineffective assistance of counsel and that the Guidelines sentence is incorrect. William Rogers has also filed a ;pro se brief raising numerous issues. In case 90-2222, Rogers’ wife, DeLinda Rogers, appeals from a jury conviction on the same charges. She argues insufficient evidence, improper admission of evidence, and errors in sentencing. We affirm the judgment in both cases.
I. No. 90-1237, William Rogers
William and DeLinda Rogers ran a medium-size methamphetamine lab at their home in rural Missouri. Two of their assistants became government informants and presented evidence against them after the police intercepted a package containing over 1,000 grams of methamphetamine carried by one of them. DEA agents and police arrested William and DeLinda and seized various lab equipment and precursor chemicals necessary to manufacture the drug.
On July 17, 1989, William requested that the district court appoint substitute counsel, citing a breakdown in communications between William and his appointed attorney. Just before trial was to begin, William’s lawyer advised him to accept a plea bargain.
At the Change of Plea Hearing on July 31, 1989, the district court judge inquired about William’s past indications that he was not satisfied with his counsel. Rogers stated that he was now getting along with his lawyer. The court’s inquiry concluded with this exchange:
COURT: “So you’re telling the Court that you are completely satisfied with the manner in which you have been represented?
ROGERS: Yes, sir, I am.”
T.Cng.P. 5-7. At the same hearing, the government and the court told William that they estimated the base line offense level for the conspiracy charge to be a thirty-six, which would probably be reduced to a thirty-four for acceptance of responsibility, and would carry a range of 151 to 188 months. The court indicated that it could not be sure of the level until the Pre-sentence Investigation (“PSI”) report was complete. Rogers stated on the record that he understood the calculation was preliminary. He also stated he understood the mandatory five year term for the firearm offense. He then entered a guilty plea.
The PSI found the base offense level for the conspiracy charge was thirty-four, and that William should receive a four point upward adjustment for being an organizer and a two point downward adjustment for acceptance of responsibility. The sentencing range was 235 to 293 months for the conspiracy charge. After receiving the PSI, Rogers sought to revoke his plea. A revocation hearing was held on November 19, 1989, and the court rejected Rogers’ claims that he was induced to plead guilty and had received ineffective assistance of counsel. At the sentencing hearing, the district court sentenced William Rogers to consecutive terms of 235 months on the conspiracy charge and sixty months on the firearm charge.
William argues he was denied effective assistance of counsel when the district court failed to appoint different counsel. He also argues that his attorney was constitutionally ineffective because his lawyer failed to devote adequate time to his case and should not have counseled him to plead guilty. William states that he was dissatisfied with his attorney from the beginning.
The district court thoroughly inquired into William’s earlier stated dissatisfaction with his attorney at the plea hearing. William’s claim is refuted by his declaration in open court that he was completely satisfied with his attorney. William admits that he knew the calculation of his sentence given at his plea hearing was preliminary. We hold that the district court did not err in refusing to appoint different counsel and that William cannot meet the high standard of proving ineffectiveness of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After examining the record, we find the remainder of William’s arguments to be without merit. A full discussion of these issues would have little precedential value.
II. No. 90-2222, DeLinda Rogers
A. Admission of Prejudicial Guilty Plea
DeLinda Rogers initially entered a plea of nolo contendere on the charges but was allowed to withdraw her plea and proceed to trial. At trial, the government presented testimony from two co-conspirators, Chris Noble and Wade Stufflebean, who had agreed to cooperate with the government in exchange for their testimony. De-Linda’s trial strategy was to discredit the government witnesses who had observed and participated in the manufacturing of the drugs at the Rogers’ residence. DeLin-da called Mark Webster as a witness, who was a friend of William Rogers and had been incarcerated at the same detention facility as William, Noble and Stufflebean. Webster testified that Noble had told him that the government was pressuring Noble to lie about the involvement of “the Rogers family” in the drug operation. Webster stated he meant DeLinda and William Rogers when he referred to the Rogers family. Over defense counsel’s objection, the trial judge ruled that the government could impeach Webster by asking him if he knew that William had pleaded guilty to a conspiracy to manufacture and distribute methamphetamine. When asked if he knew William had pleaded guilty, Webster responded that he did. The jury convicted DeLinda Rogers and she was sentenced to an aggregate term of 248 months.
DeLinda first argues that the trial court erred in admitting the highly prejudicial fact that William Rogers had pleaded guilty to the same charges for which she was now standing trial. The trial court found that the defense had invited this impeachment by eliciting testimony from Webster that co-conspirator Noble had told Webster that both William and DeLinda Rogers were innocent and that the government was forcing Noble to testify otherwise. The court reasoned that the fact Noble knew William had pleaded guilty tended to show that Noble would not have made statements saying William was innocent. The government asked Webster if he knew William had pleaded guilty to the same offense with which co-conspirator Noble had been charged. After Webster stated he knew that, the government promptly terminated its cross examination.
The trial court has broad discretion in determining what evidence to admit and its decision will be overturned on appeal only if there has been an abuse of discretion. Rothgeb v. United States, 789 F.2d 647, 650 (8th Cir.1986). Any time a guilty plea of a co-offender is either directly or indirectly brought into a trial, trial courts must ensure it is not being offered as substantive proof of the defendant’s guilt. See United States v. Wiesle, 542 F.2d 61, 62 (8th Cir.1976) (finding a co-defendant or co-conspirator’s guilty plea may not be used as evidence of the defendant’s guilt). Reference to such pleas obviously is capable of seriously prejudicing the defendant’s right to a fair trial. United States v. Handly, 591 F.2d 1125, 1128 n. 1 (5th Cir.1979). A reviewing court must carefully scrutinize the facts and circumstances of the manner in which the plea was used. It is essential to consider such factors as whether the court gave the jury a limiting instruction, “whether there was a proper purpose in introducing the fact of the guilty plea, whether the plea was improperly emphasized or used as substantive evidence of guilt, [and] whether the introduction of the plea was invited by the defense counsel.” United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir.1976); see also United States v. Kroh, 915 F.2d 326, 337 (8th Cir.1990) (en banc) (Lay, C.J., dissenting).
In limited circumstances, the government is entitled to use a co-offender’s guilty plea during cross examination for impeachment purposes when the defense has opened the door for such impeachment. Webster was a close friend and fellow inmate of William Rogers. The government had the right in these circumstances to impeach Webster’s testimony. There is no indication in the record that the government had an improper motive in questioning Webster about the guilty plea. Although a limiting instruction on use of the guilty plea should normally be given, we find that here the defense counsel made a tactical decision not to request one and the prosecution did not highlight the guilty plea before the jury. The failure to give a cautionary instruction was not plain error. See Wiesle, 542 F.2d at 63.
B. Sufficiency of the Evidence
DeLinda Rogers next argues that the evidence was insufficient to support her conviction. The government primarily relied upon the testimony of Stufflebean and Noble, both of whom pleaded guilty to conspiring to manufacture methamphetamine at the Rogers’ residence. The government also presented testimony from Noble’s wife who was present on several occasions when the drug manufacturing process was taking place at the Rogers’ house. In addition, there was testimony from law enforcement officers who investigated the drug operation, a handwriting expert who testified that handwriting found on a parcel containing drugs and intercepted by law enforcement personnel was probably that of DeLinda Rogers, and experts explaining the drug manufacturing process. DeLinda also testified and denied that she had participated in the manufacturing and distribution of methamphetamine and insisted the drug operation was carried on by Stufflebean and Noble at the Noble residence. The defense also had a handwriting expert who testified that the handwriting on the package was not that of DeLinda. In addition, the defense presented circumstantial evidence that tended to show that the elaborate cooking process needed to make methamphetamine could not have occurred at the Rogers’ residence without detection by local residents.
From the record, it is readily apparent that the government introduced adequate evidence to meet its burden of proof. Drug manufacturing equipment and chemicals were found at the Rogers’ residence. Three witnesses testified that DeLinda participated, at least to a limited extent, in the drug operation. The government’s handwriting expert testified that the writing on the parcel was probably that of DeLinda, which showed her involvement in the distribution of the drugs. The jury was entitled to resolve the conflicting evidence and make credibility determinations. We hold that there was sufficient evidence to support DeLinda’s conviction.
C. Sentencing Issues
DeLinda argues the district court erred in not granting her a downward departure under the Federal Sentencing Guidelines for being a minimal participant or a minor participant in the illegal activity. Under section 3B1.2(a) of the Guidelines, a defendant who is a minimal participant is entitled to a four-level reduction. Under section 3B1.2(b), a defendant who is a minor participant is entitled to a two-level reduction. Whether a defendant is a minimal or minor participant is a question of fact and the district court’s decision will be disturbed only if clearly erroneous. United States v. Ellis, 890 F.2d 1040, 1041 (8th Cir.1989). The district court found that DeLinda was involved in all aspects of the drug manufacturing and distribution process and that her primary responsibility was packaging and addressing the drugs for shipment. Although Chris Noble characterized DeLinda as having no specific responsibilities and testified she was not a main player, taking the evidence as a whole, we cannot say that the district court’s decision to refuse a downward departure was clearly erroneous.
Finally, DeLinda contends that the district court erred in relying on the precursor chemicals found with the drug laboratory equipment in determining the base offense level. If the amount of drugs seized does not reflect the scale of the manufacturing offense, sentencing courts shall consider evidence concerning the amount of methamphetamine defendants were capable of producing from the precursor chemicals. United States v. Evans, 891 F.2d 686, 687 (8th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 2170, 109 L.Ed.2d 499 (1990). The district court heard expert testimony estimating the ¿mount of methamphetamine that could be produced from the precursor chemicals, as well as evidence from Noble about the amount of drugs made in previous cooks. The district court arrived at a correct calculation of the base offense level after hearing this evidence.
CONCLUSION
The judgment of the district court in both cases is affirmed.
. A minimal participant must be "plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2(a), comment. (n. 1). The Commission intended downward departures for minimal participation to be given “infrequently.” Id. (n. 2). For a defendant to qualify as a minor participant, he or she must be one "who is less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), comment, (n. 3).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_appel1_7_4
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Jose Artemio CANTU-SALINAS, Defendant-Appellant.
No. 86-2214
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 15, 1986.
Francisco G. Medina, and Mario Davila, Jr., Houston, Tex., for defendant-appellant.
James R. Gough, Susan L. Yarbrough and Cedric L. Joubert, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.
Before GEE, RANDALL and DAVIS, Circuit Judges.
GEE, Circuit Judge.
Cantu, charged with cocaine distribution and an associated conspiracy, appeals from denial by the trial judge of his motion to revoke an order detaining him without bail. Our review of such actions by the district court is limited, and we have stated that its order must be sustained “if it is supported by the proceedings” in that court. United States v. Westbrook, 780 F.2d 1185, 1189 (1986), citing and quoting from United States v. Fortna, 769 F.2d 243, 250 (5th Cir.1985). The judge concluded that Cantu presented a substantial risk of flight and that no set of conditions would reasonably assure his appearance at trial. We agree.
Cantu, a resident alien, is a Mexican citizen who visits Mexico several times a year and has a sister residing there. He is divorced, unemployed, and owns no property in this country. The charges against Cantu — charges which the government has produced credible evidence upholding — are serious ones indeed, exposing him upon conviction to maximum punishments of forty years in prison and a half-million dollar fine. In such circumstances we cannot say that the court abused its discretion in denying Cantu bail.
AFFIRMED.
. As an appellate court, we possess no greater competence to review factual findings from this cold record than from one assembled at a trial on the merits. That being the case, the "clearly erroneous” standard seems a proper gauge of record support for such findings. See e.g. United States v. Kreczmer, 636 F.2d 108, 110 (5th Cir. 1981)
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer:
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songer_const1
|
0
|
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, Third-Party Plaintiff-Appellant, v. SAN FRANCISCO ELEVATOR COMPANY, Third-Party Defendant-Appellee.
No. 72-2524.
United States Court of Appeals, Ninth Circuit.
Feb. 28, 1975.
William E. Gwatkin (argued), U. S. Dept, of Justice, San Francisco, Cal., for appellant.
Ernest M. Thayer, San Francisco, Cal., (argued), for appellee.
Honorable Martin D. Van Oosterhout, Senior Circuit Judge, Eighth Circuit, sitting by designation.
OPINION
Before VAN OOSTERHOUT, BROWNING and SNEED, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by third-party plaintiff United States of America from that part of the judgment of the district court limiting its recovery from third-party defendant San Francisco Elevator Company for indemnity to $300,000, although provable damages were established at $370,000 plus attorneys’ fees. We reverse and hold that the United States is entitled to indemnity from San Francisco Elevator in the full amount the United States was required to pay in a maritime wrongful death action by a San Francisco Elevator employee.
In 1966 the United States and Todd Shipyard Corporation (Todd) entered into a master ship repair contract for repair of a navy refrigerator ship, the USS ALUDRA, which was moored at the United States Naval Air Station in Alameda, California. One of the repairs provided for in the contract was the repair of a vertical cargo elevator in the ship. This job was subcontracted to third-party defendant San Francisco Elevator. The master or prime contract between the United States and Todd contained an indemnity and hold harmless clause which provided:
“(c) The contractor indemnifies and holds harmless the Government, its agencies and instrumentalities, the vessel and its owners, against all suits, actions, claims, costs or demands (including, without limitation, suits, actions, claims, costs or demands resulting from death, personal injury and property damage) to which the Government, its agencies and instrumentalities, the vessel or its owner may be subject or put by reason of damage or injury (including death) to the property or person of any one other than the Government, its agencies, instrumentalities and personnel, the vessel or its owner, arising or resulting in whole or in part from the fault, negligence, wrongful act or wrongful omission of the Contractor, or any subcontractor, his or their servants, agents, or employees; provided, that the Contractor’s obligation to indemnity under this paragraph (c) shall not exceed the sum of $300,000 on account of any one accident or occurrence in respect of any one vessel.”
The subcontract between Todd and San Francisco Elevator also contained an indemnity clause which provided:
“GOVERNMENT CONTRACTS — If this purchase order is issued under a government contract, whether or not such government contract is specifically referred to in this purchase order, the seller agrees to indemnify and hold harmless the buyer from any liability, claims of liability and expense under said government contract arising out of seller’s failure to perform in accordance with this purchase order and seller agrees that such liability and the amount thereof may be negotiated by buyer in accordance with the terms of said government contract or determined in accordance therewith, and seller agrees to be bound thereby.
12. If deceased sustained injuries as alleged . . . such injuries were solely and proximately caused by the faulty and negligent performance of [San Francisco] Elevator Co. in breach of its contractual warranties, express or implied, of a safe place to work and [provide] workmanlike services.
LIABILITY AND INSURANCE— the seller agrees to save the buyer harmless from all claims for personal injuries, including death, and all damage to property arising out of any cause whatsoever and resulting directly or indirectly from the seller’s performance hereunder. Workmen engaged in the performance hereof shall at all times be considered employees of the seller.”
The United States was not made a party to the subcontract.
On April 25, 1960, Steven R. Bigham, an employee of San Francisco Elevator, was killed while working as an elevator mechanic on the vertical cargo elevator on the ship. The decedent’s heirs filed suit in admiralty against the United States and Todd alleging that the decedent’s death was caused by the negligence of both Todd and the United States and by the unseaworthiness of the USS ALUDRA. The United States cross-claimed against Todd claiming indemnity rights pursuant to the prime contract clause. The United States also brought a separate third-party complaint directly against San Francisco Elevator asserting its right to indemnity pursuant to San Francisco Elevator’s breach of its implied warranty to perform workmanlike service.
The Consolidated cases were, tried in admiralty to the court. The court found that Bigham’s death was caused by the unseaworthiness of the ALUDRA and the negligence of both the United States and San Francisco Elevator. Damages were assessed against the United States at $370,000. The propriety of the court’s findings as to negligence are not before us. On the basis of the limited indemnity provision in the prime contract, recovery against Todd in favor of the United States was limited to $300,000. San Francisco Elevator was ordered to indemnify Todd in accordance with the provisions of the subcontract. The court further found that the negligence of the United States did not prevent San Francisco Elevator from performing its contractual duties in a workmanlike manner and that there was a warranty of workmanlike service running from San Francisco Elevator to the United States which it breached by performing its repair work negligently. Accordingly, the court initially awarded indemnity to the United States (third-party plaintiff) in the full amount the United States was required to pay the decedent’s estate plus attorneys’ fees. However, in a subsequent Order and Supplemental Findings of Fact the court held that the indemnity limiting clause in the Todd-United States prime contract included by reference subcontractors and was applicable to the United States’ third-party action against San Francisco Elevator. Thus, the United States’ recovery against San Francisco Elevator was limited to $300,000, together with taxable costs. The sole question presented for review by this court is whether the indemnity provisions of the prime or subcontract involved limit the indemnity rights of the United States in its third-party action against San Francisco Elevator Company.
In Ryan Stevedoring Company v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) the Supreme Court held that stevedores who go aboard a vessel by the owner’s consent on an arrangement to perform a service for the ship’s benefit impliedly warrant to the ship owner that they will accomplish their task in a workmanlike manner. The Court emphasized that the implied “Warranty of Workmanlike service” finds its origin in contract, rather than tort, and is “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” Id. at 133-34, 76 S.Ct. at 237. See Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). The cited and other Supreme Court cases have involved injuries to longshoremen employed by stevedoring companies. The circuit courts of appeal are in agreement, however, that the workmanlike warranty applies to non-stevedore maritime contractors and subcontractors. See United New York Sandy Hook Pilots Ass’n v. Rodermond Industries, Inc., 394 F.2d 65 (3d Cir. 1968) (subcontractors); H & H Ship Service Co. v. Weyerhaeuser Line, 382 F.2d 711 (9th Cir. 1967) (ship repair contractor); Lusich v. Bloomfield S. S. Co., 355 F.2d 770 (5th Cir. 1966) (ship repair contractor); American Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525 (4th Cir. 1964) (shipyard contractor); Booth S. S. Co. v. Meier & Oelhaf Co., 262 F.2d 310 (2d Cir. 1958) (engine repair contractor). Moreover, even though the warranty in question is contractual in origin, Ryan, supra, the nature of the obligation of a contractor to indemnify a shipowner does not depend upon the existence of privity of contract between the shipowner and contractor. Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960). See Whisenant v. Brewster-Bartle Operating Co., 446 F.2d 394, 401 (5th Cir. 1971); DeGioia v. United States Lines Co., 304 F.2d 421, 425-26 (2d Cir. 1962). In Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct. 445, 448, 3 L.Ed.2d 413 (1959) the Court said:
“We think this case is governed by the principle announced in the Ryan case. The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel’s owners are parties to the contract or not.” (Emphasis added.)
Furthermore, the concurrent negligence of the shipowner is not necessarily a bar to recovery of indemnity. If the contractor breaches its warranty, and the breach proximately causes liability on the part of the shipowner, then the shipowner is entitled to indemnity unless its own negligent conduct is “sufficient to preclude recovery.” Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). “ ‘Conduct sufficient to preclude recovery’ means only conduct on the part of the shipowner which prevents the [contractor’s] workmanlike performance.” Brock v. Coral Drilling Co., 477 F.2d 211, 217 (5th Cir. 1973). In this respect, the trial court in the case at bar made a finding that “the negligence of the United States did not prevent the defendant elevator company from doing a workmanlike job.”
From the law as set out, supra, we conclude that San Francisco Elevator, as the ship repair contractor, owed an independent duty to the shipowner, United States, to perform in a workmanlike manner. The third-party complaint against San Francisco Elevator stated a claim based on the breach of this warranty and was not limited to contractual rights. Although contractual in nature, this independent duty to perform in a workmanlike manner does not require privity of contract between San Francisco Elevator and the United States. San Francisco Elevator owed an independent duty to the United States to perform in a workmanlike manner by virtue of its undertaking to repair the elevator aboard the ship. Failure to so perform was a breach of an independent duty owed to the United States for which the latter is entitled to indemnity for its losses.
We cannot agree, however, with the district court’s ruling that the indemnity limiting clause in the prime contract between Todd and the United States limits, the United States’ indemnity rights over against San Francisco Elevator. Nor does the indemnity provision in the subcontract between Todd and San Francisco Elevator limit San Francisco Elevator’s obligation to indemnify the United States. The indemnity action against San Francisco Elevator is independent from any contractual obligation owed by Todd to indemnify the United States pursuant to the prime contract. Furthermore, San Francisco Elevator’s agreement to indemnify Todd for its losses in no way affects San Francisco Elevator’s independent duty to the United States to perform in a workmanlike manner. This was a direct action by a shipowner against an independent contractor for indemnification pursuant to maritime law. The lack of privity between the shipowner and the contractor does not bar those indemnification rights.
Appellee San Francisco Elevator contends that the only indemnity rights the United States has arise from its position as a third-party beneficiary to the subcontract between San Francisco Elevator and Todd. Similarly, San Francisco Elevator argues that it is a third-party beneficiary to the prime contract and is entitled to the benefit of the indemnity limiting clause. The Supreme Court and this circuit have recognized that shipowners are within “the zone of modern law that recognizes rights in third-party beneficiaries” when a stevedore breaches its warranty of service. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct. 438, 2 L.Ed.2d 491 (1959); Arista CIA DeVapores, S. A. v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). The shipowner, however, may recover indemnification whether it is strictly a third-party beneficiary or not. La Capria v. Compagnie Maritime Beige, 427 F.2d 244, 247 (2d Cir. 1970); DeGioia v. United States Lines Company, 304 F.2d 421, 426 (2d Cir. 1962). In any event, the United States was not a third-party beneficiary of the indemnity provision of the subcontract between Todd and San Francisco Elevator. That contract provides only that “[San Francisco] agrees to indemnify and hold harmless [Todd] from any liability . under [the] government contract arising out of [San Francisco Elevator’s] failure to perform in accordance with the terms of said government contract . . . This provision of the contract was made for the benefit of Todd and not the United States. Similarly, San Francisco Elevator was not the beneficiary, intended or otherwise, of the indemnity limiting provision of the prime contract. Said provision provides only that “The Contractor’s obligation to indemnity under this paragraph (e) shall not exceed the sum of $300,000 on account of any one accident or occurrence in respect of any one vessel.” (Emphasis added.) Nothing in this clause could be construed to extend the $300,000 limitation to subcontractors. The limitation clearly applies only to Todd. The district court based its decision on liability on its finding that “there was an implied warranty of workmanlike service by the elevator company running to the United States which was breached; that being so, the United States is entitled to damages that the plaintiff may have sustained and is entitled to receive against the United States.” The warranty exists independently of the contractual provisions here involved between the parties. Neither San Francisco Elevator or the United States were third-party beneficiaries of the prime or subcontract indemnity provisions. Accordingly, the order of the district court limiting San Francisco Elevator’s indemnity obligation to the United States must be reversed.
As a part of its costs in defending the wrongful death suit the United States submitted a bill for attorneys’ fees of $21,194.90. It is well settled admiralty law that a shipowner is entitled to recover attorneys’ fees where it has been successful in obtaining a judgment on its third-party indemnity action. Arista CIA DeVapores v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). See Brock v. Coral Drilling, Inc., 477 F.2d 211, 217 (5th Cir. 1973); Kelloch v. S & H Subwater Salvage, Inc., 473 F.2d 767, 771 (5th Cir. 1973). The district court recognized this to be the law but found it unnecessary to pass on the reasonableness of the claimed fees because of the erroneous view that the United States’ right to indemnity was limited to $300,000.
We hold the United States is entitled to recover from San Francisco Elevator the full amount of the judgment rendered against it and in addition reasonable attorneys’ fees incurred in defending itself in the wrongful death suit brought by plaintiffs. The determination of the amount of attorneys’ fees allowable shall be determined by the district court on remand.
Reversed and remanded.
. The third-party complaint was brought as an admiralty and maritime claim pursuant to Rule 14(c), F.R.Civ.P. With respect to the nature of the claim, the complaint provided in pertinent part:
. Various notices of appeal were timely filed by the parties. However, San Francisco Elevator’s appeal on the issue of liability was voluntarily dismissed in February 1973 and the United States has chosen not to pursue its appeal on the negligence issue.
. The basis for the warranty for workmanlike service in maritime contracts is found in Ryan Stevedoring Co. v. Pan-Atlantic S.S., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), in which the Court held that a warranty of workmanlike service ran from a stevedoring company to a shipowner and that such a warranty amounted to an agreement to hold the shipowner harmless.
. In its Appellee’s Brief, San Francisco Elevator attempts to challenge the Government’s right to indemnity at all because of its concurrent negligence in creating an unseaworthy ship. However, San Francisco Elevator has not appealed or cross-appealed the district court’s determination that the negligence of the United States did not prevent San Francisco Elevator from performing its duties in a workmanlike manner. Thus, the correctness of that holding is not here before us.
. The “Ryan doctrine” was apparently abrogated by the 1972 amendments to the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 901 et seq. See 33 U.S.C. § 905(b). ■ However, the amendments are not retroactive and the injuries to the decedent in this case occurred prior to the effective date of those amendments.
. See footnote 1, supra.
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_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.
J. E. BATES & CO., Inc., v. A. J. BATES CO.
(Court of Appeals of District of Columbia.
Submitted January 19, 1925.
Decided April 6, 1925.)
No. 1714.
Trade-marks and trade-names and unfair competition <@=a2l —Division of assets on dissolution of partnership held to entitle assignee of one partner to registration of trade-mark.
Dissolution of partnership which had been using particular trade-mark, and transfer of shoe factory to one partner, with all assets . pertaining thereto, held to transfer right to use that mark and authorize such partner’s as-signee to registration of mark under 10-year clause of Act Feb. 20, 1905, § 5 (Comp. St. § 9490).
Appeal from Commissioner of Patents.
Proceeding for cancellation of trade-mark by J. E. Bates & Co., Ine., against the A. J. Bates Company. Decree for the latter, and the former appeals.
Affirmed.
W. F. Hall, of Washington, D. C., for appellant.
E. T. Fenwick, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.
MARTIN, Chief Justice.
This is an appeal by J. E. Bates & Co., Inc., from a decision of the Assistant Commissioner of Patents, denying a petition of the appellant, seeking a cancellation of the registration of “The Bates Shoe” as a trade-mark of the appellee.
The record contains extended evidence, but the controlling facts are plain. In the year 1866 A. J. Bates and J. E. Bates were co-partners, engaged in the wholesale and retail shoe business in New York City. In the year 1885 the firm, as part of its going business, established a shoe factory at Webster, Mass. From 1886 until 1905 the factory put out certain lines of shoes under the trade-name of “The Bates Shoe,” chiefly but not exclusively for sale at the company’s New York store. In the year 1905 the partnership was dissolved by mutual agreement, and the assets, including the factory and store, were divided between the two partners. In conformity with the terms of the agreement, the firm made over to the partner A. J. Bates the said factory, including all the property of the copartnership of every name and nature owned by the firm in and about Webster, Mass., consisting of all machinery, tools, implements, lasts, and other personal property used in the manufacture of shoes at the “plant of said firm” in Webster, including all merchandise and stock on hand, whether raw material, finished or unfinished, all bills receivable standing on the books of the firm at Webster, whether in the name of the firm or in the name of the Webster Shoe Company, all notes payable to said firm at Webster, all cash on hand or in bank in Webster, all unexpired insurance, “and other assets of every name and nature pertaining to the business at Webster, Mass., intending to include hereby not only the items above specifically mentioned, but all others that may be there located.” By the terms of the agreement the partner, J. E. Bates, acquired the New York store.
The trade-mark now in question had not been registered prior to this time, but in January, 1906, the appellee, A. J. Bates Company, as assignee of A. J. Bates, filed an application for its registration, and it was regularly registered on June 5, 1906, under the 10-year clause of section 5 of the. Act of February 20, 1905 (Comp. St. § 9490). The mark has been used continuously by A. J. Bates and the appellee, as his successor, at the Webster factory since that time. •
The appellant, J. E. Bates & Co., Inc., in succession to J. E. Bates, continued the business of the New York store, and in 1918 also established a factory for the manufacture of shoes. In 1922 the appellant filed the present petition for a cancellation of the trademark in question. The petition was sustained by 'the Examiner of Interferences, but upon appeal was dismissed by the Assistant Commissioner of Patents.
The facts above recited fully justify the conclusion that the transfer to A. J. Bates of the Webster factory, with all of its assets, carried with it all of the firm’s rights in and about the factory as a going business, including the trade-marks or trade-names under which the factory’s production had been put out and marketed, and that among these was the mark “The Bates Shoe,” which at the time of the dissolution had been in continuous use by the factory for more than 10 years. Accordingly, under the 10-year provision of the statute, the registration of the mark was lawful, and the Assistant Commissioner was correct in denying the appellant’s petition for its cancellation.
The decision is therefore 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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATURAL RESOURCES DEFENSE COUNCIL, INC., the Central Clearing House, Sally Rodgers, and Sandy Simons, Plaintiffs-Appellees, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Marcus A. Rowden, Victor Gilinsky, Richard T. Kennedy, New Mexico Environmental Improvement Agency, and Thomas E. Baca, Defendants, United Nuclear Corporation, Intervenor, and Kerr-McGee Nuclear Corporation and the American Mining Congress, Petitioners-to-Intervene Appellants, The Anaconda Company, Gulf Oil Corporation and Phillips Petroleum Company, Petitioners-to-Intervene.
Nos. 77-1996, 78-1069.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 12, 1978.
Decided June 15, 1978.
Neil M. Soltman, of O’Melveny & Myers, Los Angeles, Cal. (Philip F. Westbrook, Owen C. Olpin and Brian C. Lysaght, of O’Melveny & Myers, Los Angeles, Cal., and of counsel, Alfred Forsyth, Santa Fe, N. M., on the brief), for plaintiffs-appellee.
Peter J. Nickles, of Covington & Burling, Washington, D. C. (John Michael Clear and Gregg H. Levy, of Covington & Burling, and Bruce D. Black, of Campbell, Bingaman & Black, P.A., Santa Fe, N. M., on the brief), for appellant Kerr-McGee Nuclear Corp.
R. Brooke Jackson, of Holland & Hart, Denver, Colo. (Frank H. Morison, of Holland & Hart, Denver, Colo., Paul J. Kelly, Jr., of Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, N. M., and of counsel, James R. Walpole, American Mining Congress, Washington, D. C., on the brief), for appellant the American Mining Congress.
Before DOYLE and LOGAN, Circuit Judges, and STANLEY, Senior District Judge.
Of the District of Kansas, sitting by. designation.
WILLIAM E. DOYLE, Circuit Judge.
The American Mining Congress and Kerr-McGee Nuclear Corporation seek review of the order of the United States District Court for the District of New Mexico denying their motions to intervene was a matter of right or on a permissive basis, pursuant to Rule 24(a)(2) and (b), Fed.R. Civil Proc.
The underlying action in which the mov-ants requested intervention was instituted by the Natural Resources Defense Council, Inc., and others. In the action, declaratory and injunctive relief is directed to the United States Nuclear Regulatory Commission (NRC) and the New Mexico Environmental Improvement Agency (NMEIA), prohibiting those agencies from issuing licenses for the operation of uranium mills in New Mexico without first preparing environmental impact statements. Kerr-McGee and United Nuclear are potential recipients of the licenses.
Congress, in the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, has authorized the NRC to issue such licenses. NMEIA is involved because under § 274(b) of the Act, 42 U.S.C. § 2021(b) (1970), the NRC is authorized to enter into agreements with the states allowing the states to issue licenses. Such agreements have been made with about 25 states including New Mexico. Thus, the action below in effect seeks to prevent the use of § 274(b) of the Act so as to avoid the requirement of an impact statement for which provision is made in the National Environmental Policy Act.
42 U.S.C. § 4332(2)(C) (1970) requires that a detailed environmental impact statement must be prepared by all federal agencies “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” The complaint cites this requirement and alleges that an environmental impact statement would ordinarily be required here as a prerequisite to the issuance of licenses for the operation of uranium mills were it not for the arrangement which gives jurisdiction to the state. It further alleges that such statements are now prepared by the NRC in states that have not entered into agreements with the NRC, but that the NRC does not prepare such statements where there is an agreement with a state such as New Mexico. Plaintiff contends that the granting of licenses by state agencies predicated on delegation of authority from the NRC causes the NRC to consider the aspect of “major federal action” to be thereby eliminated. The New Mexico agency, NMEIA, which grants the license, does not prepare environmental impact statements since it is not a federal agency and is not required either by its agreement with NRC or by state law to prepare such a statement.
The relief sought by the plaintiffs’ complaint is, first, that NRC’s involvement in the licensing procedure in New Mexico is, notwithstanding the delegation to the state, sufficient to constitute major federal action, whereby the impact statement requirement is not eliminated. Second, that if an impact statement is not required in connection with the granting of licenses, the New Mexico program is in conflict with § 274(d)(2) of the Atomic Energy Act of 1954, 42 U.S.C. § 2021(d)(2) (1970).
The motion of United Nuclear Corporation to intervene is not opposed by the parties and was granted. On May 3, 1977, the date that the complaint herein was filed, NMEIA granted a license to United Nuclear to operate a uranium mill at Church Rock, New Mexico. The complaint seeks to enjoin the issuance of the license thus granted.
It was after that that Kerr-McGee Nuclear Corporation, Anaconda Company, Gulf Oil Corporation, Phillips Petroleum Company, and the American Mining Congress filed motions to intervene. These motions, insofar as they sought intervention as of right, were denied on the ground that the interests of the parties or movants would be adequately represented by United Nuclear. Permissive intervention was also denied. Kerr-McGee and the American Mining Congress both appeal denial of both intervention as of right and permissive intervention.
Our issue is a limited one. We merely construe and weigh Rule 24(a) of the Fed.R. Civ.P. (intervention as of right) and decide in light of the facts and considerations presented whether the denial of intervention was correct. The Rule provides as follows:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
We do not have a subsection (1) situation involving a statutory conferring of right to intervene. Accordingly, we must consider the standards set forth in subsection (2), which are:
1. Whether the applicant claims an interest relating to the property or transaction which is the subject of the action.
2. Whether the claimants are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest.
3. Whether their interest is not adequately represented by existing parties.
The district court’s order denying intervention by the several corporations focused on whether the interest of the party seeking to intervene was adequately represented by a fellow member of the industry. Our relatively recent decision in National Farm Lines v. ICC, 564 F.2d 381 (10th Cir. 1977), was held not determinative because the movants for intervention would be represented by a fellow member of the industry rather than by the United States Government, whose interests were different in National Farm Lines. The court decided that the interests of the movants were adequately protected by United Nuclear, which possessed the necessary experience and knowledge in a complex area of business, whereby the representative’s capability was competent to meet the demands. The court thought that to allow the intervention would engender delay and produce unwieldy procedure; and that the movants’ requirements were met by allowing the filing of amicus curiae briefs.
Our conclusion is that the interests of movants in the subject matter is sufficient to satisfy the requirements of Rule 24 and that the threat of loss of their interest and inability to participate is of such magnitude as to impair their ability to advance their interest.
I.
The position adopted by the trial court that Kerr-McGee was adequately represented dispensed with the need for the court to consider the question whether Kerr-McGee had an interest in the litigation before the court. Plairitiffs-appellees maintain that the appellants do not have the requisite interest because they are not directly involved; that the controversy centers on the effort of Natural Resources Defense Council, Inc. to prevent the issuance of a license to United Nuclear unless and until an environmental impact statement is issued. The question then is whether the contention made is a correct concept of interest. Strictly to require that the movant in intervention have a direct interest in the outcome of the lawsuit strikes us as being too narrow a construction of Rule 24(a)(2). Kerr-McGee argues that the meaning of interest is one which, if they do not prevail in the intervention, threatens them with a disposition of the action which may, as a practical matter, impair or impede their efforts to protect the interest. Thus, we are asked to interpret interest in relationship to the second criterion in Rule 24(a)(2), impairment or impeding ability to protect the interest.
The Supreme Court has said that the interest must be a significantly protectable interest. See Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). The Supreme Court held that a taxpayer did not have a right to intervene in a judicial enforcement proceeding seeking issuance of an Internal Revenue summons ordering production of business records of his employer. The narrowness of the summons proceeding was noted, and it was said that an objection of the taxpayer could be raised at the proper time in a subsequent trial.
Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-36, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), held that the interest claimed by the applicant in intervention did not have to be a direct interest in the property or transaction at issue provided that it was an interest that would be impaired by the outcome. There Cascade’s source of supply would have been a new company created by an antitrust divestiture, a significant change. In view of this consequence of the litigation, it was held that Cascade had a sufficient interest. See also Allard v. Frizzell, 536 F.2d 1332, 1334 n.1(10th Cir. 1976). In Allard it was ruled that the applicant in intervention did not have a sufficient interest. Movant’s interest there was general and somewhat abstract.
In our case the matter of immediate interest is, of course, the issuance and delivery of the license sought by United Nuclear. However, the consequence of the litigation could well be the imposition of the requirement that an environmental impact statement be prepared before granting any uranium mill license in New Mexico, or, secondly, it could result in an injunction terminating or suspending the agreement between NRC and NMEIA. Either consequence would be felt by United Nuclear and to some degree, of course, by Kerr-McGee, which is said to be one of the largest holders of uranium properties in New Mexico. It operates a uranium mill in Grants, New Mexico, pursuant to an NMEIA license, which application for renewal is pending. A decision in favor of the plaintiffs, which is not unlikely, could have a profound effect upon Kerr-McGee. Hence, it does have an interest within the meaning of Rule 24(a)(2). This interest of Kerr-McGee is in sharp contrast to the minimal interest which was present in Allard, wherein it was an interest of environmental groups in the protection of living birds. This was considered insufficient to justify intervention in a case involving feathers which are part of Indian artifacts. Their interest was said to be limited to a general interest in the public. Id. at 1334. The interest asserted on behalf of Kerr-McGee and the American Mining Congress is one which is a genuine threat to Kerr-McGee and the members of the American Mining Congress to a substantial degree.
We do not suggest that Kerr-McGee could expect better treatment from state authorities than federal. We do recognize that a change in procedure would produce impairing complications.
II.
The next question is whether, assuming the existence of an interest, the chance of impairment is sufficient to fulfill the requirement of Rule 24(a)(2).
As already noted, the question of impairment is not separate from the question of existence of an interest. The appellants both claim an interest in licenses that are now before NMEIA or will be in the future. If the relief sought by the plaintiffs is granted, there can be little question but that the interests of the American Mining Congress and of Kerr-McGee would be affected. Plaintiffs contend, however, that appellants would not be bound by such a result if they are not participants. Kerr-McGee points out that even though it may not be res judicata, still it would have a stare decisis effect. Moreover, with NRC and NMEIA as parties, the result might be more profound than stare decisis.
It should be pointed out that the Rule refers to impairment “as a practical matter.” Thus, the court is not limited to consequences of a strictly legal nature. The court may consider any significant legal effect in the applicant’s interest and it is not restricted to a rigid res judicata test. Hence, the stare decisis effect might be sufficient to satisfy the requirement. See New York Public Interest Research Group, Inc. v. Regents of the University of New York, 516 F.2d 350, 352 (2d Cir. 1975). It is said that where, as here, the case is of first impression, the stare decisis effect would be important. See Nuesse v. Camp, 128 U.S. App.D.C. 172, 180, 385 F.2d 694, 702 (1967).
Finally, the considerations for requiring an environmental impact statement will be relatively the same in respect to the issuance of a uranium mining license in every instance. Hence, to say that it can be repeatedly litigated is not an answer, for the chance of getting a contrary result in a case which is substantially similar on its facts to one previously adjudicated seems remote. See Natural Resources Defense Council v. Costle, 183 U.S.App.D.C. 11, 16-18, 561 F.2d 904, 909 — 11 (1977); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 405 (1967).
We are of the opinion, therefore, that appellants have satisfied the impairment criterion.
III.
The final question is whether the trial court was correct in its conclusion that United Nuclear would adequately represent Kerr-McGee and the American Mining Congress.
The finding and conclusion was that the representation would be adequate because United Nuclear, a fellow member of the industry, has interests which were the same as those of the appellants and possessed the same level of knowledge and experience with the ability and willingness to pursue the matter and could adequately represent Kerr-McGee and the members of the American Mining Congress.
We have held in accordance with Trbo-vich v. UMW, 404 U.S. 528, 538 n.10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), that the burden continues to be on the petitioner or movant in intervention to show that the representation by parties may be inadequate. National Farm Lines v. ICC, 564 F.2d 381, 383 (10th Cir. 1977). We have also recognized the holding in Trbovich that the burden is minimal; that it is enough to show that the representation “may be” inadequate.
United Nuclear is situated somewhat differently in this case than are the other members of the industry since it has been granted its license. From this it is urged by Kerr-McGee that United Nuclear may be ready to compromise the case by obtaining a mere declaration that while environmental impact statements should be issued, this requirement need be prospective only, whereby it would not affect them. While we see this as a remote possibility, we gravely doubt that United Nuclear would opt for such a result. It is true, however, that United Nuclear has a defense of laches that is not available to Kerr-McGee or the others.
7A C. Wright & A. Miller, Federal Practice & Procedure, § 1909, at 524 (1972), says:
[I]f [an applicant’s] interest is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, but he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee.
While the interest of the two applicants may appear similar, there is no way to say that there is no possibility that they will not be different and the possibility of divergence of interest need not be great in order to satisfy the burden of the applicants under National Farm Lines, supra.
There are other reasons for allowing intervention. There is some value in having the parties before the court so that they will be bound by the result. American Mining Congress represents a number of companies having a wide variety of interests. This can, therefore, provide a useful supplement to the defense of the case. The same can be said of Kerr-McGee.
The trial court was concerned that the addition of these movants would make the litigation unwieldy. If the intervenors are limited to this group, unwieldiness does not become a problem which the trial court cannot control. It does not appear that there would be a need for additional parties in view of the presence of the American Mining Congress. While we do not express an opinion on the possibilities of further additions, we wish to make clear that the present holdings that the two applicants should be allowed to intervene does not say that others should be added. The two appellants here have satisfied their burden of the three requirements of Rule 24(a)(2). Consequently, they should be and they are hereby allowed to intervene. Accordingly, we need not determine whether the district court erred in denying permissive intervention under Rule 24(b).
The order of the district court is reversed and the cause is remanded with instructions to the trial court to grant the appellants, Kerr-McGee’s and American Mining Congress’, motions to intervene.
. Holloway, J., concurring in the result.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_appel1_2_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". Your task is to determine what subcategory of private association best describes this litigant.
CALIFORNIA MEN’S COLONY, UNIT II MEN’S ADV. COUNCIL, Plaintiff-Appellant, v. James ROWLAND, Director, James H. Gomez, Sara Bruce, Leslie Bandaccari, Defendants-Appellees.
No. 90-55600.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 9, 1991.
Decided July 29, 1991.
Charles D. Weisselberg, James H. Lock-lin, University of Southern California Law Center, Los Angeles, Cal., for plaintiff-appellant.
Richard Thomson, Supervising Deputy Atty. Gen., Sacramento, Cal., for defendants-appellees.
Before TANG, REINHARDT and WIGGINS, Circuit Judges.
WIGGINS, Circuit Judge:
The California Men’s Colony, Unit II, Men’s Advisory Council (“the MAC”) appeals the district court’s denial of its motion pursuant to 28 U.S.C. § 1915(a) to proceed in forma pauperis in this civil rights action brought under 42 U.S.C. § 1983. The district court denied the motion on the ground that the appellant had not made an adequate showing of indigency as required by § 1915. The court also denied the MAC’s request for reconsideration of that ruling. By order of July 20, 1990, we granted the MAC’s motion to proceed in forma pauperis for the purpose of addressing an issue of first impression in this Circuit: whether an organization may proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3), and we have jurisdiction to review the denial of the MAC’s motion under 28 U.S.C. § 1291. Because we find that the plain meaning of the statute indicates that associations may be authorized to proceed in forma pauperis, we reverse the district court’s ruling.
BACKGROUND
The MAC, which was created by the warden of California Men’s Colony, is an association of inmates, elected by the general prison population, that acts both as an advocate for inmate interests and as a sort of prison administration/inmate liaison. It brought this action alleging violations of the eighth and fourteenth amendments of the United States Constitution based on the Department of Correction’s June 1989 directive to all state prison wardens instructing them to discontinue the program, established in 1949, of providing free tobacco to inmates who are unable to afford it. The complaint seeks declaratory and injunctive relief to have the program reinstated.
At the time it filed the complaint, the MAC also filed a motion for leave to proceed in forma pauperis. Accompanying the motion was an affidavit signed by William Cochran, the Council’s Chairman, indicating that the MAC is prohibited by prison regulations from holding any assets whatsoever. The district court adopted the magistrate’s recommendation that the motion to proceed in forma pauperis be denied on the ground that the MAC had made an inadequate showing of indigency. In denying the MAC’s request for reconsideration of that ruling, the court stated that “[i]f the requesting party wishes to amend its application to proceed in forma pauperis with details of each individual’s indigency, the court will consider the amended application.” The MAC chose to file this appeal rather than to reapply.
By order of July 20, 1990, this Court granted the appellant’s motion to proceed in forma pauperis for the purpose of addressing on appeal the question whether an organization may proceed in forma pauper-is pursuant to 28 U.S.C. § 1915(a). We also appointed counsel to represent the appellants, and directed the California Attorney General to represent the appellees.
DISCUSSION
The parties agree that the issues raised by this appeal are purely legal questions that we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
I.
“When construing a statute, we look first to the plain meaning of the language in question.” S & M Inv. v. Tahoe Regional Planning Agency, 911 F.2d 324, 326 (9th Cir.1990) (citation omitted), cert. denied, — U.S. —, 111 S.Ct. 963, 112 L.Ed.2d 1050 (1991). This “plain meaning rule” is based on the view “that in the vast majority of its legislation Congress does mean what it says and thus the statutory language is normally the best evidence of congressional intent.” Church of Scientology v. United States Dept. of Justice, 612 F.2d 417, 421 (9th Cir.1979). When the plain language appears to settle the question, we “ ‘look to the legislative history to determine only whether there is clearly expressed legislative intention contrary to that language.’ ” S & M Inv., 911 F.2d at 327 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987)) (internal quotation omitted).
We must apply these principles of statutory construction to the federal in forma pauperis statute, codified at 28 U.S.C. § 1915, which provides in relevant part:
§ 1915. Proceeding in forma pauperis (a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor.
28 U.S.C. § 1915(a) (emphasis added). This case turns on whether the word “person” as used in § 1915(a) includes associations such as the MAC. The appellant argues that the question is conclusively resolved by reference to 1 U.S.C. § 1, which provides in part:
§ 1. Words denoting number, gender, and so forth
In determining the meaning of any Act of Congress, unless the context indicates otherwise— ... the word[ ] ‘person’ ... include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals....
1 U.S.C. § 1. The MAC contends that this statutory scheme unambiguously establishes that associations such as itself qualify as a “person” for purposes of § 1915(a), and that a federal court is therefore authorized to permit such an association to proceed in forma pauperis.
This position was first set forth in a dissenting opinion by Chief Judge Bazelon of the District of Columbia Court of Appeals in S.O.U.P., Inc. v. F.T.C., 449 F.2d 1142, 1143-45 (D.C.Cir.1971) (per curiam) (Bazelon dissenting). The majority in S.O.U.P. assumed without deciding that corporations could proceed in forma pauperis, but denied the motion on the grounds that the particular corporation involved had not submitted sufficient evidence of its indigency. Id. at 1142. Chief Judge Bazelon, believing “that the statute does apply to corporations and that the petitioner has satisfied all reasonable standards which might be applied to test such applications,” id. at 1143 (Bazelon dissenting), wrote a persuasive dissent. We quote in full his concise and compelling discussion of the language of § 1915(a):
Section 1915(a) provides that a federal court may authorize litigation without prepayment of costs “by a person who makes affidavit that he is unable to pay such costs or give security therefor.” [Emphasis added.] The statute’s reference to “person” does not indicate, however, that the section has no application to corporations. On the contrary, the statutory guidelines for the interpretation of Congressional acts, 1 U.S.C. § 1 (1970), make clear that the term “person” should ordinarily be taken to “include corporations ... as well as individuals.” Moreover, there is no indication in the legislative history of § 1915 that Congress intended to depart from this well-established canon of statutory construction.
Id. (footnote omitted). We agree that the plain meaning of § 1915(a), when read in conjunction with 1 U.S.C. § 1, indicates that associations can proceed in forma pauperis if they meet the indigency requirements.
To overcome the normal presumption in favor of a statute’s plain meaning, the appellee argues that the legislative history reveals “no indication whatsoever that Congress intended to extend § 1915 to corporations.” This peculiar argument — peculiar because, as we have just seen, the statutory language itself expressly indicates such an intent — is based on the statute’s legislative history, or, more specifically, on its amendment in 1959.
From the time the in forma pauperis statute was first enacted in 1892 until 1959, it authorized federal courts to permit a “citizen” to proceed without paying fees and costs. In 1959, however, Congress, in response to a suggestion by the Department of Justice, amended the statute by substituting the word “person” for “citizen.” The only piece of legislative history accompanying the amendment is a Senate Report describing its purpose as follows:
The legislative proposal recommended by the Department of Justice would substitute the word “person” for the word “citizen.” Thus, indigent aliens would be extended the same privilege of proceedings in forma pauperis as is now afforded citizens. It is the opinion of the Department of Justice that this proposal would be consonant with the ideas or policies of the United States.
In addition, the Judicial Conference of the United States in recommending this legislation pointed out that the distinction between citizens and aliens as contained in existing law may be unconstitutional. Furthermore, it may also be in violation of various treaties entered into by the United States with foreign countries which guarantee to their citizens access of the courts of the United States on the same terms as American citizens.
S.Rep. No. 947, 86th Cong., 1st Sess. 2-4 (1959), reprinted in 1959 U.S.Code Cong. & Admin.News 2663, 2664 (emphasis added). The Report does not discuss the statute’s applicability to associations, and it does not mention 1 U.S.C. § 1. Relying upon this legislative history, the appellees argue that the amendment’s sole purpose was to extend the coverage of § 1915(a) to both citizens and aliens, and hence that Congress never intended it to apply to associations such as the MAC.
The appellee is far from alone in reaching the conclusion that this legislative history reveals a congressional intent to deny the benefits of § 1915 to all but natural persons (i.e. citizens and aliens). A majority of the courts that have addressed the question have also concluded, in reliance to a greater or lesser extent on this legislative history, that federal courts are not authorized to permit associations or corporations to proceed in forma pauperis. Typical of the reasoning of these courts is the following passage from the only circuit court (the Fifth) that has confronted the issue squarely:
This legislative history is compelling. We would be impermissibly reading more into the statute than Congress intended if we were to hold that the 1959 amendment added corporations as well as aliens to the list of those entitled to seek [in forma pauperis] status.
FDM Mfg., 855 F.2d at 214.
II.
With all due respect to the courts that have reached a contrary conclusion, we find nothing in this legislative history to justify a construction of § 1915 so flatly contrary to the statute’s plain meaning. As we noted above, by far the most compelling interpretation of § 1915(a)’s plain meaning is that, when read in conjunction with 1 U.S.C. § 1, “person” refers both to natural persons and to entities such as corporations and associations. We agree with an earlier district court that, in the course of addressing this issue, noted that “Congress may be assumed to have been aware of [1 U.S.C. § 1] at the time of the 1959 amendment to § 1915.” Harlem River, 71 F.R.D. at 97. After all, that is presumably why Congress chose to codify the canons of statutory construction in 1 U.S.C. § 1 — so that it would be unnecessary to repeat these common principles of interpretation each time it enacts or amends a statute. According to the plain meaning of the statute, then, associations are “persons” that may be authorized to proceed in forma pauperis.
That brings us to the legislative history. We may disregard the plain meaning of a statute only where there is a “clearly expressed legislative intention” contrary to that plain meaning. Cardoza-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. at 1213 n. 12. We think that the most that can be said about that history is that it indicates that Congress did not explicitly consider whether the amendment to § 1915(a) would extend the statute’s reach beyond citizens and aliens. Such congressional silence does not constitute the type of compelling contrary evidence we must find before abandoning a statute’s plain meaning. Accordingly, we hold that § 1915 applies to associations.
III.
We turn to the facts of this case. In general, given the procedural status of this case, we would be hesitant to decide whether the appellant should be permitted to proceed in forma pauperis. Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute’s requirement of indigency. See, for example, United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (“When a claim of poverty is made under section 1915 ‘it is proper and indeed essential for the supporting affidavits to state the facts as to affiant’s poverty with some particularity, definiteness and certainty.’ ” (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir.1960)). Because the appellant chose to appeal the district court’s denial of its motion rather than to supplement its initial affidavit, we would normally be inclined to remand to the district court for a conclusive determination as to the appellant’s indigency status.
However, it is unnecessary to remand this case for that purpose. It is undisputed that the MAC is prohibited by prison regulation from maintaining any assets, including a bank account. Thus, not only is the appellant indigent, but that state of affairs is clearly not due to any effort on the part of its members to obtain the benefits of litigation without bearing the ordinary financial burdens. Accordingly, we find that the MAC has conclusively established that it meets the statute’s indigency requirements. On remand, then, the district court shall grant the appellant’s motion to proceed in forma pauperis.
We wish to clarify what we do not decide today. Having determined that non-natural persons such as corporations and associations may proceed in forma pauperis if they meet the indigency requirements, the facts of this case do not permit us to delineate the procedure by which reviewing courts are to make that indigency determination. Other courts that have decided this issue have discussed the unique considerations that confront a court in making this determination; we are not unwary of the complexities that might arise in determining whether corporations or associations are indigent, but those issues are not properly before us. And in any case, we do not think it would be wise to attempt a comprehensive test for determining indigency. The nature of that inquiry will vary depending upon the particular characteristics of both the affiant and the case, and we are loath to fetter the discretion of future courts called upon to determine whether a party can satisfy the statutory requirements.
CONCLUSION
We hold that associations are “persons” within the meaning of 28 U.S.C. § 1915(a), and hence that they may proceed in forma pauperis. If we have misread the true intention of Congress, it may of course alter the statute so as to preclude associations from qualifying for in forma pauperis status. Further, we find that the appellant has established its indigency such that it should be permitted to proceed in forma pauperis in this case. The district court’s order is REVERSED and this matter is REMANDED for further proceedings.
. We note that our order instructed the parties to address a question upon which the district court did not expressly rule. That is, because the district court denied the appellant’s motion to proceed in forma pauperis on the ground that it had not made an adequate showing of indi-gency, it did not decide the threshold question— which this Court instructed the parties to address in this appeal — of whether the statute authorizes an organization to proceed in forma pauperis.
. Two district courts have subsequently followed Judge Bazelon’s lead. See Harlem River Cons. Co-op. v. Assoc. Grocers, Etc., 71 F.R.D. 93 (S.D.N.Y.1976); River Valley, Inc. v. Dubuque County, 63 F.R.D. 123 (N.D.Iowa 1974).
. We attribute no significance to the fact that S.O.U.P. involved a corporation, whereas this case involves an association or an organization. While such distinctions may affect a reviewing court’s inquiry into a moving party's indigency status, they do not affect the threshold question we decide here, which is whether non-natural persons, however classified, may proceed in for-ma pauperis under § 1915(a).
. FDM Mfg. Co., Inc. v. Scottsdale Ins. Co., 855 F.2d 213, 214-15 (5th Cir.1988) ("legislative history is compelling”); Honolulu Lumber Co., Ltd. v. Am. Factors, Ltd., 265 F.Supp. 578, 580-81 (D.Hawaii 1966) ("It thus appears that Congress never intended by this single word change in 1959 to extend this privilege to a whole new class of artificial persons.”); Sears Roebuck & Co. v. C.W. Sears Real Estate, 686 F.Supp. 385, 386-88 (N.D.N.Y.) (“no evidence whatsoever that Congress intended to extend the statute’s coverage to corporations"), aff’d, 865 F.2d 22 (2d Cir.1988); MOVE Organization v. U.S. Dept. of Justice, 555 F.Supp. 684, 690-92 (E.D.Pa.1983) (rule that § 1915(a) extends only to natural persons "is the better reading of the legislative history").
. In particular, although we reject the approach suggested by the district court of reviewing the finances of MAC members to determine whether the association is indigent, we do so only on the ground that members are prohibited by prison regulation from contributing funds to the MAC. We do not decide, as a general matter, the relevance of members’ individual finances in determining an association’s indigency.
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_district
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
In the Matter of Cecil STATHAM, Bankrupt. Cecil STATHAM, Bankrupt-Appellant, v. W. Stanley RIDDLE, Jr., Trustee-Appellee.
No. 72-1260.
United States Court of Appeals, Ninth Circuit.
Aug. 7, 1973.
Certiorari Denied Dec. 3, 1973.
See 94 S.Ct. 578.
Jack Steinberg (argued), Seattle, Wash., for bankrupt-appellant.
W. Stanley Riddle, Jr. (argued in pro. per.), of Riddle & Hines, Seattle, Wash., for trustee-appellee.
OPINION
Before CHAMBERS, CARTER and GOODWIN, Circuit Judges.
JAMES M. CARTER, Circuit Judge.
Appellant Statham attacks the constitutionality of the Homestead Laws of the State of Washington under the Equal Protection Clause of the Fourteenth Amendment.
On August 16, 1970, appellant, a single man without dependents, recorded a declaration of homestead on real property in the State of Washington. The following day, August 17, 1970, he filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. Thereafter he claimed the real property as exempt under Washington law. The Bankruptcy Act laws exemptions provided by State law, Section 6 of the Act, 11 U.S.C. § 24.
The claim was disallowed by the trustee and the referee, and a petition for review was denied by the district court.
Statutes of the State of Washington permit a homestead to be selected by an unmarried person who is the head, of a family. R.C.W. 6.12.020. “Head of a Family” is defined as a person who has residing on the premises with him [or her] and under his [or her] care and maintenance various relations listed therein. R.C.W. 6.12.290(2) (a) through (e).
R.C.W. 6.12.290(1) lists as the head of a family:
“The husband or wife, when the claimant is a married person; or a widow or widower still residing upon the premises occupied by her or him as a home while married.”
Otherwise, a single person is not included as eligible for a homestead.
In the field of economics and social welfare, legislation does not violate the Equal Protection Clause of the Fourteenth Amendment if “the State’s action be rationally based and free from invidious discrimination.” Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (Aid for Dependent Children); accord McGowan v. Maryland, 366 U.S. 420, 425-428, 81 S.Ct. 1101, 6 L.Ed.2d 393 (Sunday Blue Laws).
In United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973) the Court held that “bankruptcy legislation is in the area of economics and social welfare. This being so, the applicable standard, in measuring the propriety of Congress’ classification, is that of rational justification.” (Citing Dandridge, supra, inter alia.) The Court also held there was no due process or equal protection right to a discharge in bankruptcy without payment of the required filing fees. The Court rejected Kras’ claim that bankruptcy involved a fundamental interest and represented the sole means of discharging one’s debts, at least for the poor. The Court said, “We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.” Id. at 445, 93 S.Ct. at 638. And further, “There is no constitutional right to obtain a discharge of one’s debt in bankruptcy.” Id. at 446, 93 S.Ct. at 638. See Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971) (Social Security Act).
We hold that the State of Washington, in its statutes concerning homesteads, had a rational basis for the legislation and its treatment of a single person without dependents. By reasonable inference from the scheme of the Washington statutes, they evince a legislative purpose to protect the “family” from loss of its homestead in case of economic distress. Appellant argues that the scheme instead exists to protect not only the family, but the individual debtor himself — including single debtors without dependents such as appellant. We cannot agree. The “head of a family” and his family are clearly the persons protected, defined broadly to include certain dependents not members of one’s immediate family.
Appellant points out that the statute does protect single persons without dependents, who also happen to be widow(er)s still living in the former marital domicile. We think that protection of the former family, one of whose members has died, from the loss of the homestead at such a tragic time, constitutes a rational basis for differentiating between widow(er)s and other single persons without dependents who by definition would not be subject to such a loss.
The judgment is affirmed.
. That classification does not endanger a fundamental personal right. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (legitimacy).
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_petitionerstate
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37
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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 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.
NEW JERSEY v. NEW YORK
No. 120,
Orig.
Decided May 21, 1998
Decree entered May 17, 1999
DECREE
The Court having exercised original jurisdiction over this controversy between two sovereign States; the issues raised having been heard in an evidentiary proceeding before the Special Master appointed by the Court; the Court having heard argument on the Final Report of the Special Master and the exceptions filed by the state parties; the Court having issued its opinion on the issues raised in the exceptions, which is reported at 523 U. S. 767 (1998); and the Special Master having submitted his Report Upon Recommittal;
It Is Hereby Ordered, Adjudged, and Decreed as Follows:
I
The State of New Jersey’s prayer that she be declared to be sovereign over the landfilled portions of Ellis Island added by the Federal Government after 1834 is granted and the State of New York is enjoined from enforcing her laws or asserting sovereignty over the portions of Ellis Island that lie within the State of New Jersey’s sovereign boundary as set forth in paragraph 4 of this decree.
HH HH
The sovereign boundary between the State of New Jersey and the State of New York is as set forth in Article First of the Compact of 1834, enacted into law in both States and approved by Congress.
1 — 1 HH 1 — 1
The State of New York remains sovereign under Article Second of the Compact of 1834 of and over the original Ellis Island, to the low-water mark, and the pier area built on landfill, as the Island and pier were structured in 1834, as more particularly depicted on the 1857 United States Coast Survey of New York Harbor.
IV
The boundary between the two States on Ellis Island is as depicted on the map of Ellis Island, Showing Boundary Between States of New Jersey and New York, dated December 1,1998, which is appended hereto, infra. The boundary between the two States, as depicted on the appended map, lies along the line described as follows:
Beginning at a point with North (NAD83) metric coordinates of North 207 180.7849 (latitude North 40 degrees 41 minutes 54.92285 seconds) and East 188 879.9657 (longitude West 74 degrees 02 minutes 23.75137 seconds), said point being (a) South 45 degrees 42 minutes 50 seconds East along the northeasterly granite block wall of the Ferry Slip about 502 feet from the northwesterly terminus of said wall and thence being (b) North 46 degrees 39 minutes 35.7 seconds East about 10 feet to said point of beginning; thence the following courses and distances:
(1) N 42 degrees 10 minutes 59.1 a 61.150 feet to a point; thence
(2) N 45 degrees 24 minutes 60.990 feet to a point; thence
(3) N 46 degrees 1.813 feet to a point; thence
(4) N 45 degrees 33 minutes 03.3 seconds a 9.193 feet to a point; thence
(5) N 45 degrees 42 minutes 35.4 seconds a 24.972 feet to a point; thence
(6) S 42 degrees 23 minutes 50.8 seconds E, a distance of
I.947 feet to a point; thence
(7) N 45 degrees 15 minutes 54.9 seconds E, a distance of 19.092 feet to a point; thence
(8) S 46 degrees 25 minutes 55.5 seconds E, a distance of 14.147 feet to a point; thence
(9) S 69 degrees 37 minutes 24.8 seconds E, a distance of 4.667 feet to a point; thence
(10) S 67 degrees 54 minutes 46.2 seconds E, a distance of 4.654 feet to a point; thence
(11) S 70 degrees 49 minutes 58.4 seconds E, a distance of 12.373 feet to a point; thence
(12) S 79 degrees 45 minutes 36.8 seconds E, a distance of 9.844 feet to a point; thence
(13) N 86 degrees 16 minutes 07.0 seconds E, a distance of
II.526 feet to a point; thence
(14) N 72 degrees 30 minutes 15.3 seconds E, a distance of 12.058 feet to a point; thence
(15) N 61 degrees 34 minutes 34.0 seconds E, a distance of 13.787 feet to a point; thence
(16) N 37 degrees 42 minutes 57.5 seconds E, a distance of 11.851 feet to a point; thence
(17) N 01 degrees 43 minutes 14.9 seconds E, a distance of 14.569 feet to a point; thence
(18) N 22 degrees 53 minutes 06.4 seconds W, a distance of 13.500 feet to a point; thence
(19) N 48 degrees 57 minutes 00.8 seconds W, a distance of 17.321 feet to a point; thence
(20) N 48 degrees 15 minutes 36.6 seconds W, a distance of 13.988 feet to a point; thence
(21) N 51 degrees 26 minutes 12.9 seconds W, a distance of 17.345 feet to a point; thence
(22) N 43 degrees 49 minutes 22.3 seconds W, a distance of 12.907 feet to a point; thence
(23) N 54 degrees 54 minutes 43.1 seconds W, a distance of 30.552 feet to a point; thence
(24) N 70 degrees 20 minutes 46.2 seconds W, a distance of 26.016 feet to a point; thence
(25) N 49 degrees 2B minutes 55.3 seconds W, a distance of 10.372 feet to a point; thence
(26) N 05 degrees 34 minutes 48.6 seconds W, a distance of 10.927 feet to a point; thence
(27) N 00 degrees 17 minutes 59.9 seconds W, a distance of 11.938 feet to a point; thence
(28) N 23 degrees 17 minutes 40.4 seconds W, a distance of 14.698 feet to a point; thence
(29) N 53 degrees 00 minutes 04.3 seconds W, a distance of 11.113 feet to a point; thence
(30) N 57 degrees 55 minutes 46.1 seconds W, a distance of 11.654 feet to a point; thence
(31) N 63 degrees 34 minutes 20.5 seconds W, a distance of 11.655 feet to a point; thence
(32) N 70 degrees 09 minutes 45.4 seconds W, a distance of 10.498 feet to a point; thence
(33) N 64 degrees 39 minutes 53.0 seconds W, a distance of 15.628 feet to a point; thence
(34) N 42 degrees 57 minutes 16.5 seconds W, a distance of 9.906 feet to a point; thence
(35) N 20 degrees 46 minutes 20.1 seconds W, a distance of 9.693 feet to a point; thence
(36) N 24 degrees 35 minutes 59.2 seconds W, a distance of 11.411 feet to a point; thence
(37) N 18 degrees 46 minutes 40.9 seconds W, a distance of 9.902 feet to a point; thence
(38) N 00 degrees 00 minutes 00.0 seconds E, a distance of 12.938 feet to a point; thence
(39) N 05 degrees 54 minutes 22.1 seconds W, a distance of 10.933 feet to a point; thence
(40) N 16 degrees 33 minutes 01.3 seconds W, a distance of 13.823 feet to a point; thence
(41) N 33 degrees 24 minutes 44.2 seconds W, a distance of 14.301 feet to a point; thence
(42) N 25 degrees 46 minutes 09.6 seconds W, a distance of 12.076 feet to a point; thence
(43) N 37 degrees 08 minutes 48.1 seconds W, a distance of 10.350 feet to a point; thence
• (44) N 32 degrees 03 minutes 52.4 seconds W, a distance of 12.833 feet to a point; thence
(45) N 31 degrees 19 minutes 03.9 seconds W, a distance of 12.144 feet to a point; thence
(46) N 17 degrees 53 minutes 21.4 seconds W, a distance of 10.377 feet to a point; thence
(47) N 06 degrees 53 minutes 43.1 seconds W, a distance of 13.535 feet to a point; thence
(48) N 03 degrees 03 minutes 10.4 seconds E, a distance of 9.388 feet to a point; thence
(49) N 11 degrees 29 minutes 11.7 seconds W, a distance of 11.926 feet to a point; thence
(50) N 34 degrees 52 minutes 31.2 seconds W, a distance of 10.056 feet to a point; thence
(51) N 30 degrees 47 minutes 02.9 seconds W, a distance of 10.258 feet to a point; thence
(52) N 17 degrees 53 minutes 21.4 seconds W, a distance of 10.377 feet to a point; thence
(53) N 00 degrees 21 minutes 53.8 seconds W, a distance of 9.813 feet to a point; thence
(54) N 18 degrees 34 minutes 20.5 seconds W, a distance of 8.242 feet to a point; thence
(55) N 06 degrees 10 minutes 47.7 seconds W, a distance of 9.870 feet to a point; thence
(56) N 04 degrees 25 minutes 03.0 seconds W, a distance of 14.606 feet to a point; thence
(57) N 21 degrees 57 minutes 38.0 seconds W, a distance of 8.356 feet to a point; thence
(58) N 28 degrees 19 minutes 29.9 seconds W, a distance of 10.011 feet to a point; thence
(59) N 23 degrees 19 minutes 03.8 seconds W, a distance of 3.947 feet to a point; thence
(60) N 24 degrees 12 minutes 42.3 seconds W, a distance of 10.211 feet to a point; thence
(61) N 09 degrees 17 minutes 00.8 seconds W, a distance of 13.173 feet to a point; thence
(62) N 26 degrees 15 minutes 31.2 seconds E, a distance of 10.454 feet to a point; thence
(63) N 48 degrees 14 minutes 50.4 seconds E, a distance of 12.483 feet to a point; thence
(64) S 87 degrees 53 minutes 19.2 seconds E, a distance of 13.572 feet to a point; thence
(65) S 64 degrees 54 minutes 13.5 seconds E, a distance of 10.905 feet to a point; thence
(66) S 68 degrees 55 minutes 21.0 seconds E, a distance of 12.861 feet to a point; thence
(67) S 70 degrees 10 minutes 04.3 seconds E, a distance of 12.159 feet to a point; thence
(68) S 59 degrees 59 minutes 42.3 seconds E, a distance of 10.248 feet to a point; thence
(69) S 65 degrees 02 minutes 32.3 seconds E, a distance of 10.961 feet to a point; thence
(70) S 56 degrees 22 minutes 33.9 seconds E, a distance of 15.011 feet to a point; thence
(71) S 65 degrees 01 minutes 07.5 seconds E, a distance of 12.135 feet to a point; thence
(72) S 72 degrees 23 minutes 43.3 seconds E, a distance of 13.639 feet to a point; thence
(73) N 72 degrees 50 minutes 17.1 seconds E, a distance of 13.344 feet to a point; thence
(74) N 77 degrees 08 minutes 45.2 seconds E, a distance of 9.552 feet to a point; thence
(75) S 86 degrees 40 minutes 12.7 seconds E, a distance of 17.217 feet to a point; thence
(76) S 66 degrees 15 minutes 01.8 seconds E, a distance of 10.242 feet to a point; thence
(77) S 71 degrees 54 minutes 34.2 seconds E, a distance of 9.863 feet to a point; thence
(78) S 87 degrees 15 minutes 10.449 feet to a point; thence 26.6 seconds E, a distance of
(79) S 54 degrees 29 minutes 11.516 feet to a point; thence 54.5 seconds E, a distance of
(80) S 57 degrees 20 minutes 8.686 feet to a point; thence 20.7 seconds E, a distance of
(81) S 47 degrees 36 minutes 48.0 seconds E, a distance of 10.662 feet to a point; thence
(82) S 43 degrees 13 minutes 26.2 seconds E, a distance of 11.407 feet to a point; thence
(83) S 45 degrees 24 minutes 22.8 seconds E, a distance of 12.463 feet to a point; thence
(84) S 63 degrees 26 minutes 05.8 seconds E, a distance of 10.482 feet to a point; thence
(85) S 63 degrees 56 minutes 07.2 seconds E, a distance of 12.802 feet to a point; thence
(86) S 68 degrees 51 minutes 36.6 seconds E, a distance of 10.051 feet to a point; thence
(87) S 83 degrees 55 minutes 39.2 seconds E, a distance of 11.816 feet to a point; thence
(88) S 87 degrees 14 minutes 27.2 seconds E, a distance of 10.387 feet to a point; thence
(89) S 47 degrees 05 minutes 24.6 seconds E, a distance of 12.117 feet to a point; thence
(90) S 33 degrees 17 minutes 23.9 seconds E, a distance of 12.412 feet to a point; thence
(91) S 36 degrees 11 minutes 13.6 seconds E, a distance of 11.538 feet to a point; thence
(92) S 62 degrees 43 minutes 23.7 seconds E, a distance of 13.501 feet to a point; thence
(93) S 84 degrees 13 minutes 03.4 seconds E,ta distance of 9.926 feet to a point; thence
(94) S 71 degrees 39 minutes 48.0 seconds E, a distance of 11.523 feet to a point; thence
(95) S 45 degrees 21 minutes 45.5 seconds E, a distance of 13.966 feet to a point; thence
(96) S 37 degrees 11 minutes 27.6 seconds E, a distance of 15.613 feet to a point; thence
(97) S 63 degrees 45 minutes 09.6 seconds E, a distance of 15.122 feet to a point; thence
(98) S 70 degrees 24 minutes 57.6 seconds E, a distance of 13.798 feet to a point; thence
(99) S 59 degrees 24 minutes 14.4 seconds E, a distance of 16.700 feet to a point; thence
(100) S 60 degrees 38 minutes 32.1 seconds E, a distance of 13.768 feet to a point; thence
(101) S 48 degrees 52 minutes 16.5 seconds E, a distance of 11.782 feet to a point; thence
(102) S 80 degrees 54 minutes 35.0 seconds E, a distance of 12.659 feet to a point; thence
(103) S 83 degrees 25 minutes 05.0 seconds E, a distance of 13.086 feet to a point; thence
(104) S 79 degrees 49 minutes 56.0 seconds E, a distance of 11.683 feet to a point; thence
(105) S 85 degrees 36 minutes 04.7 seconds E, a distance of 13.038 feet to a point; thence
(106) S 81 degrees 54 minutes 20.0 seconds E, a distance of 14.204 feet to a point; thence
(107) N 90 degrees 00 minutes 00.0 seconds E, a distance of 9.375 feet to a point; thence
(108) S 80 degrees 20 minutes 42.1 seconds E, a distance of 15.279 feet to a point; thence
(109) S 47 degrees 58 minutes 47.4 seconds E, a distance of 16.153 feet to a point; thence
(110) S 23 degrees 55 minutes 21.0 seconds E, a distance of 9.094 feet to a point; thence
(111) S 38 degrees 34 minutes 09.6 seconds E, a distance of 18.546 feet to a point; thence
(112) S 30 degrees 17 minutes 47.2 seconds E, a distance of 12.885 feet to a point; thence
(113) S 13 degrees 08 minutes 27.9 seconds E, a distance of 16.494 feet to a point; thence
(114) S 05 degrees 16 minutes 03.7 seconds E, a distance of 17.700 feet to a point; thence
(115) S 17 degrees 09 minutes 57.4 seconds E, a distance of 12.494 feet to a point; thence
(116) S 45 degrees 00 minutes 00.0 seconds E, a distance of 4.419 feet to a point; thence
(117) S 18 degrees 43 minutes 50.9 seconds E, a distance of 11.483 feet to a point; thence
(118) S 15 degrees 34 minutes 21.2 seconds E, a distance of 11.873 feet to a point; thence
(119) S 28 degrees 42 minutes 40.4 seconds E, a distance of 14.181 feet to a point; thence
(120) S 41 degrees 33 minutes 09.4 seconds E, a distance of 11.024 feet to a point; thence
(121) S 56 degrees 56 minutes 54.8 seconds E, a distance of 10.887 feet to a point; thence
(122) S 45 degrees 24 minutes 12.5 seconds E, a distance of 12.551 feet to a point; thence
(123) S 42 degrees 16 minutes 25.3 seconds E, a distance of 13.937 feet to a point; thence
(124) S 59 degrees 20 minutes 23.7 seconds E, a distance of 12.134 feet to a point; thence
(125) S 46 degrees 10 minutes 08.9 seconds E, a distance of 10.830 feet to a point; thence
(126) S 34 degrees 45 minutes 21.3 seconds E, a distance of 11.183 feet to a point; thence
(127) S 21 degrees 48 minutes 05.1 seconds E, a distance of 12.453 feet to a point; thence
(128) S 04 degrees 31 minutes 35.3 seconds W, a distance of 15.047 feet to a point; thence
(129) S 23 degrees 00 minutes 39.1 seconds E, a distance of 22.544 feet to a point; thence
(130) S 09 degrees 43 minutes 39.3 seconds E, a distance of 13.317 feet to a point; thence
(131) S 02 degrees 45 minutes 32.8 seconds W, a distance of 20.774 feet to a point; thence
(132) S 02 degrees 54 minutes 27.9 seconds W, a distance of 19.713 feet to a point; thence
(133) S 11 degrees 36 minutes 10.4 seconds E, a distance of 16.780 feet to a point; thence
(134) S 24 degrees 37 minutes 24.8 seconds E, a distance of 13.200 feet to a point; thence
(135) S 27 degrees 06 minutes 38.6 seconds E, a distance of 14.675 feet to a point; thenee
(136} S 23 degrees 53 minutes 42.6 seconds E, a distance of 10.801 feet to a point; thence
(137) S 39 degrees 13 minutes 03.4 seconds E, a distance of 7.018 feet to a point; thence
(138) S 18 degrees 39 minutes 13.1 seconds E, a distance of 10.357 feet to a point; thence
(139) S 09 degrees 11 minutes 48.0 seconds W, a distance of 6.648 feet to a point; thence
(140) S 78 degrees 18 minutes 38.3 seconds W, a distance of 5.553 feet to a point; thence
(141) S 89 degrees 32 minutes 03.1 seconds W, a distance of 7.688 feet to a point; thence
(142) N 58 degrees 58 minutes 45.6 seconds W, a distance of 10.794 feet to a point; thence
(143) N 61 degrees 57 minutes 19.1 seconds W, a distance of 7.577 feet to a point; thence
(144) N 62 degrees 20 minutes 12.3 seconds W, a distance of 8.750 feet to a point; thence
(145) N 60 degrees 15 minutes 18.4 seconds W, a distance of 7.054 feet to a point; thence
(146) N 60 degrees 42 minutes 51.3 seconds W, a distance of 13.544 feet to a point; thence
(147) S 65 degrees 42 minutes 51.0 seconds W, a distance of 11.245 feet to a point; thence
(148) S 32 degrees 24 minutes 24.0 seconds W, a distance of 8.513 feet to a point; thence
(149) S 36 degrees 24 minutes 59.0 seconds E, a distance of 9.475 feet to a point; thence
(150) S 67 degrees 50 minutes 01.2 seconds W, a distance of 5.467 feet to a point; thence
(151) S 66 degrees 40 minutes 56.2 seconds W, a distance of 3.947 feet to a point; thence
(152) S 73 degrees 02 minutes 40.9 seconds W, a distance of 5.358 feet to a point; thence
(153) S 82 degrees 11 minutes 37.0 seconds W, a distance of 7.822 feet to a point; thence
(154) S 75 degrees 34 minutes 45.2 seconds W, a distance of 9.035 feet to a point; thence
(155) S 54 degrees 44 minutes 03.2 seconds W, a distance of 10.717 feet to a point; thence
(156) S 87 degrees 27 minutes 47.7 seconds W, a distance of 9.885 feet to a point; thence
(157) S 71 degrees 24 minutes 08.2 seconds W, a distance of 13.914 feet to a point; thence
(158) S 71 degrees 06 minutes 50.1 seconds W, a distance of 15.061 feet to a point; thence
(159) S 83 degrees 21 minutes 17.0 seconds W, a distance of 12.962 feet to a point; thence
(160) S 65 degrees 16 minutes 21,7 seconds W, a distance of 10.459 feet to a point; thence
(161) S 87 degrees 31 minutes 20.6 seconds W, a distance of 13.012 feet to a point; thence
(162) N 86 degrees 13 minutes 02.5 seconds W, a distance of 15.158 feet to a point; thence
(163) S 83 degrees 50 minutes 33.1 seconds W, a distance of 15.150 feet to a point; thence
(164) N 86 degrees 04 minutes 18.1 seconds W, a distance of 14.597 feet to a point; thence
(165) N 73 degrees 38 minutes 51.4 seconds W, a distance of 10.878 feet to a point; thence
(166) N 71 degrees 39 minutes 48.0 seconds W, a distance of 11.523 feet to a point; thence
(167) N 60 degrees 04 minutes 59.0 seconds W, a distance of 12.907 feet to a point; thence
(168) N 36 degrees 49 minutes 18.7 seconds W, a distance of 14.912 feet to a point; thence
(169) N 44 degrees 13 minutes 20.2 seconds W, a distance of 9.768 feet to a point; thence
(170) N 36 degrees 01 minutes 38.5 seconds W, a distance of 11.051 feet to a point; thence
(171) N 21 degrees 30 minutes 05.2 seconds W, a distance of 8.867 feet to a point; thence
(172) N 77 degrees 42 minutes 17.0 seconds W, a distance of 9.979 feet to a point; thence
(173) N 84 degrees 45 minutes 45.1 seconds W, a distance of 7.531 feet to a point; thence
(174) N 61 degrees 55 minutes 39.0 seconds W, a distance of 9.563 feet to a point; thence
(175) N 29 degrees 24 minutes 45.0 seconds W, a distance of 10.690 feet to a point; thence
(176) N 80 degrees 08 minutes 03.1 seconds W, a distance of 5.83(3 feet to a point; thence
(177) N 72 degrees 52 minutes 01.2 seconds W, a distance of 8.698 feet to a point; thence
(178) N 85 degrees 37 minutes 20.1 seconds W, a distance of 13.101 feet to a point; thence
(179) S 88 degrees 52 minutes 55.8 seconds W, a distance of 12.815 feet to a point; thence
(180) N 90 degrees 00 minutes 00.0 seconds W, a distance of 4.313 feet to a point; thence
(181) S 49 degrees 21 minutes 03.9 seconds W, a distance of 8.155 feet to a point; thence
(182) S 46 degrees 39 minutes 35.7 seconds W, a distance of 99.169 feet to the point and place of beginning.
V
The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be considered necessary or desirable to give proper force and effect to this Decree or to effectuate the rights of the parties.
VI
The States of New Jersey and New York shall share equally in the compensation for the Special Master and his assistants, and for expenses of this litigation incurred by the Special Master in this controversy.
[Ellis Island Boundary map follows this page.]
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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songer_appel1_7_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Plaintiff-Appellee, v. George W. McCRARY, Defendant-Appellant.
No. 88-5698.
United States Court of Appeals, Fourth Circuit.
Argued July 14, 1989.
Decided Oct. 16, 1989.
Benjamin Thomas Reed (Gustin, Reed & Martin, Norfolk, Va., on brief), for defendant-appellant.
Robert William Wiechering, Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.
PER CURIAM:
George W. McCrary appeals the sentence imposed by the district court after he entered a plea of guilty on one count of conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. § 846. We vacate the sentence and remand for limited further proceedings.
I
The pertinent facts are these. Sometime in August of 1988, drug interdiction agents of the United States Customs Service initiated a “sting” operation designed to lure Fidel Escamilla (Fidel), a major cocaine distributor, to Virginia Beach, Virginia, where the agents planned an undercover drug transaction that would presumably result in Fidel’s arrest. Customs agents secured the cooperation of Guy Malbon, who had recently been convicted of several drug offenses and who apparently had conducted business with Fidel over the course of several years. At the government’s behest, Malbon contacted Fidel, who agreed to send his nephew, Cosme Escamilla (Cosme), and one other of his “boys,” James Slaton, to Virginia Beach. Fidel promised Malbon that Cosme and Slaton would deliver at least two kilograms of cocaine, in return for $90,000.
Fidel ultimately met with Cosme and Sla-ton in Tennessee, where he described for them the agreed upon terms of the planned delivery to Malbon. For reasons that remain unclear on the face of the record, the defendant was present at this meeting. It appears, however, that he did not participate in the immediate discussions among Fidel, Cosme and Slaton. Sometime shortly after the meeting, Slaton advised McCrary that he could make three hundred dollars by driving Cosme and Slaton to Virginia Beach, staying overnight and returning the following day.
On August 21, 1988, Cosme, Slaton and McCrary set out for Virginia Beach. McCrary drove most of the way. When the group arrived, Slaton called Malbon to work out the details of the planned transfer. Malbon asked Slaton to meet one of Malbon’s associates — who proved to be an undercover agent — at a local convenience store, and to deliver the cocaine to him. Slaton was then to return to the same store the next day to pick up the $90,000 payment. Slaton, Cosme and McCrary complied with these instructions, but were arrested on the second day en route to the drop point.
The multiple count indictment ultimately returned by the grand jury charged the defendant with unlawful distribution of a controlled substance, in violation of 21 U.S.C. § 841; interstate travel to facilitate the distribution of a controlled substance, in violation of 18 U.S.C. § 1952; and conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. § 846. McCrary agreed to cooperate with the government and pleaded guilty to the last of these three charges, in return for which the prosecution dismissed the remaining counts of the indictment.
Because the defendant committed the offense after November 1, 1987, the district court imposed sentence under the Guidelines. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 235, 98 Stat.1988, 2031 (1984) (as amended) (savings clause/effective date), reprinted at 18 U.S. C.A. § 3551 (West 1985 & Supp.1989). On the basis of a presentence report prepared by the United States Probation Office, the court determined that the defendant’s “base offense level” was 28, see Drug Quantity Table, Guidelines § 2D1.1; that McCrary was entitled to a two-level downward adjustment for “acceptance of responsibility,” Guidelines § 8E1.1; and that various prior convictions placed the defendant in “Criminal History Category II.” See id. § 4A1.1. Utilizing the sentencing table found in Chapter 5, Part A of the Guidelines, the court then determined that the applicable “guideline range” for the imposition of a prison term was 70-87 months. The court ultimately sentenced the defendant to seventy months in prison, and this appeal followed.
II
McCrary argues that the district court erred in three ways: first, by refusing to grant his request for an additional downward adjustment in his base offense level under the Guidelines’ provisions for mitigation of the sentences of “minimal” or “minor” participants in “concerted” criminal activity, id. § 3B1.2; second, by refusing to grant his separate request for a “downward departure” from the applicable guidelines sentencing range to reflect a purported showing that the defendant acted under coercion or duress, id. § 5K2.12; and third, by classifying him in Criminal History Category II, when his criminal record suggested that Category I was applicable. Having considered carefully each of these claims, we find that only the third is meritorious.
A
At least where it appears that the district court needed to do no more than resolve disputed questions of fact, we review its réfusal to grant downward adjustments pursuant to the “Mitigating Role” provision of the Guidelines, id. § 3B1.2, under the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). See also 18 U.S.C. § 3742(e). Here, we think the most McCrary can show is that the record admitted of more than one conclusion on the matter; and under the applicable standard of review, we therefore must reject his challenge to the district court’s refusal to find him a minimal or minor participant.
At the original sentencing hearing in this case, the defendant introduced evidence tending to show that his role in the alleged drug-running scheme was not as significant as those of his co-conspirators. It appears, for example, that McCrary never had the cocaine on his person, and that he did not actually transfer the drugs to the undercover agent. As the government points out, however, there was substantial contrary evidence that McCrary still played an important part in the conspiracy. He drove almost the entire way from Tennessee to Virginia, was aware of the nature of the planned drug transaction and was present at the convenience store when Slaton handed over the cocaine. We of course recognize that a downward adjustment for “minimal participation” may be appropriate “where an individual was recruited as a courier for a single ... transaction involving a small amount of drugs.” Guidelines § 3B1.2, Application Note 2. The evidence here suggested, however, that McCrary had participated in a number of prior deliveries. The quantity of drugs involved in the Virginia Beach transaction was, moreover, hardly insubstantial. The district court’s refusal to make a downward adjustment on this basis was not error.
B
A different standard of review applies where the defendant challenges a district court’s decision to grant or deny a requested downward departure from an otherwise applicable guidelines sentencing range. Here we review to determine whether it was “reasonable” for the district court to conclude that McCrary did not act under “coercion” or “duress,” and that he therefore was not eligible for a downward departure under Guidelines § 5K2.12. See 18 U.S.C. § 3742(e)(3). This “reasonableness standard” is not to be applied, however, as though it represents a “fixed point within the scope-of-review spectrum.” Daughtrey, 874 F.2d at 218. “[Rjather, it ... is a sliding scale, with the appropriate point depending on the particular aspect of the departure decision issue being reviewed.” Id.
This means that where, as here, a departure decision is challenged essentially on factual grounds, the “reasonableness” standard of § 3742(e)(3) necessarily takes on the quality of the “clearly erroneous” standard, requiring comparable deference to the district court’s decision. Reviewing the district court’s refusal to find coercion justifying departure under this standard, we find no error.
McCrary sought to persuade the district court that had he refused to participate in the Virginia Beach transaction, he would have suffered the wrath of his co-conspirators. But his proffered evidence clearly did not compel such a determination. “Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property[,] or similar injury resulting from the unlawful conduct of a third party....” Guidelines § 5K2.12. Here, McCrary points to no evidence whatsoever that his co-conspirators voiced threats of this magnitude; and the district court was therefore entitled to reject the defendant’s claim that he acted solely under duress.
C
We turn finally to McCrary’s claim that he is entitled to resentencing because the district court erred in determining his “criminal history category.”
The parties agree that the presentence report upon which the district court relied in setting McCrary’s criminal history category was tainted by a technical error that the court failed to correct. For the purpose of determining McCrary’s criminal history category under Guidelines § 4A1.1, the Probation Office counted as a “sentence of imprisonment” a suspended sentence the defendant received some nine years before in connection with an assault conviction. This was improper because, as the government concedes, “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment.” Id. § 4A1.2, Application Note 2 (emphasis supplied).
From the defendant’s perspective, the error was significant. Had the Probation Office not counted the sentence imposed in connection with the assault conviction, it would have placed McCrary in Criminal History Category I, rather than Category II. All other things being equal, this would in turn have yielded an applicable guidelines sentencing range of 63-78 months, rather than the 70-87 month range which the district court ultimately applied. McCrary of course seeks a remand for re-sentencing, arguing that the district court should have a new opportunity to sentence him — as it did initially — at the “low end” of the “appropriate” guidelines range.
The government responds that the technical error here was harmless, inasmuch as the alternative sentencing ranges overlapped and the sentence actually imposed fell within both ranges. We have no doubt that, in many such cases, an appellate court should hesitate before ordering resentencing. It will often appear on the face of a given record, for example, that “the sentence imposed would have been selected under either guideline range” — in which case “a dispute as to which of two overlapping ... ranges is applicable need not be resolved.” United States v. Bermingham, 855 F.2d 925, 934 (2d Cir.1988). That sensible rule presupposes, however, that the district court appreciated the possibility that an alternative, “overlapping” guideline range might apply. For reasons earlier indicated, the sentencing court here did not know that; and we therefore cannot confidently assume that, if apprised of the technical defect in the Probation Office’s report, it would nevertheless have imposed the same sentence it did.
The possibility that the court might not have imposed the same sentence is at least suggested by its imposition of a sentence at the “low end” of what it believed to be the applicable sentencing range. Of course, the opposite possibility — that the court would have imposed the same sentence in application of the proper guideline — is at least an equal one on the record we review.
Because we cannot confidently resolve the matter on the record before us, we think the proper course is to “remand[ ] for clarification of the [district [¡judge’s intention regarding the appropriateness of [the] sentence [imposed].” Id. at 935-36. Now apprised of the error in the presentence report and the applicability of a different guidelines range, the district court may reconsider the sentence imposed, either on the present record or on the basis of further proceedings.
Ill
For the foregoing reasons, the district court’s sentencing order is vacated and the case remanded for further proceedings consistent with this opinion.
SO ORDERED.
. Section 3742(e) provides, in relevant part, that when an appeal is taken from a sentence imposed under the Guidelines, ”[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.”
. Cf. Guidelines § 3B1.2, Application Note 1 ("[T]he defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.”).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
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.
Oscar L. ALTMAN et al., Appellants, v. CENTRAL OF GEORGIA RAILWAY COMPANY.
No. 72-1153.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 15, 1973.
Decided Nov. 8, 1973.
Victor A. Altman, Washington, D. C., for appellants.
James Hamilton, Washington, D. C., with whom Charles A. Horsky, Washington, D. C., was on the brief, for appellee.
Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.
. Appellant Victor Altman intervened and participated in the Commission proceeding, but did not seek either reconsideration by the Commission of its approval order or judicial review thereof.
McGOWAN, Circuit Judge:
In an action to compel the payment of dividends, the District Court, on cross-motions for summary judgment, ruled that the claim was no longer maintainable because of the supervening circumstance of an Interstate Commerce Commission order approving a corporate consolidation and, as an incident thereof, providing compensation, as required by the Interstate Commerce Act, for the just and reasonable value of the minority shares. The District Court purported to follow authoritative doctrine heretofore formulated by the Supreme Court in this precise statutory context. We think it was correct in doing so; and we affirm.
I
In 1965 plaintiffs Oscar and Victor Altman, assertedly acting for themselves individually and for a class of preferred stockholders of Central of Georgia Railway Company, complained in the District Court of the Company’s failure to pay dividends on its preferred stock in certain years. Since Central’s charter provided that dividends on the preferred stock were payable in respect of each year only from Available Net Income accruing in respect of such year, it was alleged alternatively that the directors of Central had (a) wrongly interpreted the charter definition of Available Net Income, and (b) spent excessive amounts on property acquisition and maintenance, in either instance with the effect of showing no Available Net Income for dividend purposes. After defendants had filed an answer denying these allegations, plaintiffs filed a motion for summary judgment. Plaintiffs attempted to appeal the District Court’s denial of that motion, but the appeal was dismissed by this court (No. 23,332, November 12, 1969), and that ruling by the District Court is not now before us.
In 1970 plaintiffs sought summary judgment in respect of the years 1964-65, 1967, and 1969, on the allegation that a 1964 revision of Central’s by-laws required the payment of preferred dividends from earned surplus. Central asserted in opposition that the by-law was invalid as in conflict with the charter; and that, in any event, there were questions of fact which must be resolved before the directors could be found to have abused the discretion vested in them to manage Central's affairs, including determination of the levels of capital and maintenance expenditures.
This second plaintiffs’ motion for summary judgment was denied on the same day (December 16, 1971) that the District Court granted defendants’ motion for summary judgment; and both actions are the subjects of this appeal. The latter motion derived from the circumstance that, in December of 1969, Central, jointly with the Southern Railway Company and three other subsidiaries of Southern, applied to the Interstate Commerce Commission for authority to consolidate Central and the three other subsidiaries into a new corporation to be known as the Central of Georgia Railroad Company.
In January of 1971 the application was approved by the Commission. An intervenor’s petition for reconsideration was denied in April, and, on June 1, 1971, the consolidation was consummated, with the effect that Central of Georgia Railway Company disappeared and its former preferred shareholders retained the right under the Commission’s approval order to be paid $84 for each share formerly held, as representing the just and reasonable value thereof. As of the time of argument in this court, eight persons owning 232 preferred shares (.1% of the preferred in being when the consolidation was effective) had not elected to take payment for their shares. These persons did not include appellant Oscar Altman.
It is the principal contention of appel-lee Central in this court, as it was in the earlier proceedings involving the stay, that, under Schwabacher v. United States, 334 U.S. 182, 68 S.Ct. 958, 92 L. Ed. 1305 (1948), the federal statutory scheme for the regulation of railroad consolidations placed in the Commission the function of evaluating dividend claims of minority shareholders as part of the process of determining the compensation to be paid them upon the extinction of their shares. With this premise, it is asserted that appellants are in effect collaterally attacking in the courts an exercise of judgment confided exclusively by the Congress to the Commission in the first instance and subject only to direct challenge upon judicial review of the Commission’s action. Since this approach is rested so heavily upon Schwabacher, we look to see what was involved in that case.
Two interstate rail carriers sought, under Section 5 of the Interstate Corn-merce Act, the Commission’s approval and authorization of a plan for their merger. The Commission considered the terms and conditions of the plan, including the provisions made by it for the exchange of stock of the surviving corporation for the preferred stock of the merging corporation. The Commission found those terms and conditions just and reasonable, and approved the merger. The Commission’s action was challenged on judicial review of its order by some minority preferred stockholders who had contended that under Michigan law — the state of incorporation — they had a charter right to a liquidation value of at least $172.50 per share. They complained that the plan, as approved by the Commission, awarded an exchange value substantially lower than the liquidation figure, thereby depriving them of their contractual rights under Michigan law.
The Commission did not purport to resolve this contention. It said only that the exchange terms of the plan were proper under the standards of the Interstate Commerce Act, and that any claims of further entitlement under state law, such as those pressed by the preferred shareholders, were left for resolution “through negotiation and litigation in the courts.” No danger to the public interest would result, said the Commission, because the merged assets were so substantial, and the gross amount of the state law claims were, by comparison, so minor.
In the Supreme Court the complaining shareholders asserted that the Commission itself should have recognized the charter right under Michigan law, and directed that increased compensation in accordance therewith be made as a condition of merger approval. Contrarily, the Commission urged upon the Court that it had been correct in leaving that issue to future resolution by the parties through negotiation or litigation.
Both, said the Supreme Court, were wrong. The merger provisions of the Act were intended by the Congress to make the Commission, exercising federal power and applying federal law, the guardian in the first instance of the national interest in financially sound and viable railroad carriers. In achieving that end, the Commission was not bound by the provisions of state law but was, rather, “given complete control of the capital structure” resulting from a merger. Thus, the appellant shareholders misconceived the sweep of the Act in asserting that the Commission erred in not meticulously recognizing and implementing the rights to par value and accrued dividends allegedly conferred upon them by the charter and Michigan law. But so also did the Commission err in leaving it open for negotiation or litigation over these rights to thrust upon the surviving corporation a capital structure shaped by those rights instead of solely by the Commission’s determination of what was fair and reasonable in the light of all relevant factors. It was, concluded the Court, the Commission’s statutory duty to fix that capital structure finally in the merger proceeding, subject only to direct review by the courts of challenges to the propriety under the Act of the Commission’s determinations.
It would appear, thus, that Schwa-bacher is dispositive of the litigation before us. Appellants’ claim of right to additional dividends derives solely from state law, and it does not survive the final order of the Commission approving the consolidation, which order includes the provision of $84 in respect of each preferred share of Central. In discussing the attack on this figure made by intervening preferred shareholders, the Commission noted that the consolidation applicants, while contending that “inter-venor Altman’s lawsuit is without merit,” also conceded “that many of the issues involved in his claim are relevant to a determination of the fair value of Old Central’s preferred shares.” They' argued that the value of the corporate funds not paid out as dividends are reflected in the current financial statements and were taken into account in valuing the stock. Thus, said the Corn-mission, “[t]he preferred shareholders will receive the benefit of the earnings which the intervenor contended should have been paid out as dividends.”
In its resolution of the protest against the $84 figure, the Commission concluded, after remarking that dividend ar-rearages were taken by it to be the $15 per share accumulation figure provided in the charter, that (1) “the yield of the preferred, Old Central’s substantial negative working capital position, and the prevailing unfavorable investor attitude toward railroad securities in general all justify a cash consideration for Old Central’s preferred stock of an amount less than its par or redemption value,” and (2) the $84 was, under all the circumstances, fair and equitable.
It was argued to the Commission by intervenor Victor Altman that it was not proper for the Commission to value the preferred stock. The Commission rejected this contention, saying that “under the Act it is the duty of this Commission to consider all aspects of the transaction for which its approval is sought, including assurance that all minority shareholders are treated fairly and justly,” and that it had, in the course of its valuation, “considered all pertinent factors, including the fact that there is a shareholders’ law suit pending in Altman v. Central of Georgia R. Co. ”
The Commission then added this sentence: “Our action herein, however, has no bearing on the rights of the parties in that proceeding, and is not to be construed as being determinative of any issue therein.” Appellants’ contentions in this court rest mainly on this sentence, arguing that it exhibits the Commission’s purpose to leave open for judicial resolution the claim of right to additional dividends under state law.
It is not, however, the Commission’s purpose (assuming it for the moment to have been as contended by appellants) that is controlling, but, rather, that of Congress. And in Schtuabacher the Supreme Court held that latter purpose to be that state law claims of this character are to be taken into consideration by the Commission as a factor relevant to the determination of fair value, but they do not survive the valuation embodied in a final merger approval order. Thus, even if the Commission’s language was intended by it to operate as appellants assert, it could not have, in law, the effect claimed for it.
Although, as just indicated, the question of the Commission’s actual intent in using these words can be pretermitted, we think the District Court was probably correct in saying that “[t]he statement by the Commission that it has not made any determination of issues before and within the jurisdiction of this Court is merely one of comity.” The major issue before the District Court was, of course, the reach of Schwabacher to these facts — and that is a question which the Commission could not, and undoubtedly had no thought of trying to, foreclose the courts from deciding. It has now been decided by the District Court in the manner dictated by Schwabacher, and we uphold that decision.
It is so ordered.
. This litigation had been before us earlier on a successful appeal from a District Court dismissal on the ground of forum non conveniens. Altman v. Central of Georgia Railway Company, 124 U.S.App.D.C. 155, 363 F.2d 284 (1966), cert. denied, 385 U.S. 920, 87 S.Ct. 231, 17 L.Ed.2d 144 (1966).
. With the application filed, Central moved in the District Court to stay proceedings on the ground that the Commission now had exclusive jurisdiction to determine claims to preferred dividends as an incident to its statutory duty to fix just and reasonable compensation for the minority preferred shares. The District Court denied the stay, but allowed an interlocutory appeal, 28 U.S. C. 1292(b), which was accepted by this court. At oral argument of that appeal, the parties agreed to a suggestion by the court that the case be remanded to the District Court with instructions to stay the suit pending disposition by the Commission of the consolidation application; and such a remand was made.
. Plaintiffs-appellants Oscar and Victor Altman sued as individual owners of preferred shares and on behalf of a class or classes of all persons owning preferred shares during the years when dividends were alleged to have been wrongfully withheld. At the time it dismissed the complaint in the order under appeal, the District Court also dismissed the action as a class suit. Its apparent reasoning on this point was that the class had become so small as to render class representation inappropriate. Although, in view of the disposition we make of this appeal, we need not reach this question, we note that Fed. R.Civ.P. 23(a)(1) contemplates that the class be “so numerous that joinder of all members is impracticable,” and that the cases appear to call for larger numbers than were involved here. See, e. g., Atwood v. National Bank of Lima, 115 F.2d 861, 863 (6th Cir. 1940), and Moscarelli v. Stamm, 288 F.Supp. 453, 463 (E.D.N.Y.1968).
. See also Suffin v. Pennsylvania R.R. Co., 276 F.Supp. 549 (D.Del.1967), aff’d, 396 F. 2d 75 (3rd Cir. 1968), cert. denied, 393 U.S. 1062, 89 S.Ct. 713, 21 L.Ed.2d 705 (1969).
. To the extent that it is now the position of appellant Victor Altman that the Commission should have taken the state law claims into account, but did not in fact do so, at least to an adequate degree, he would appear to be foreclosed by the fact that, although he actively participated in the Commission proceeding, he neither sought reconsideration by the Commission of its action nor direct judicial review thereof. Note 3 supra. The Commission’s responsibilities in this regard had long before been made known by the Supreme Court in 8chwabaeher.
. A seemingly separate argument, at least as conceived by appellants, is that, since the approved consolidation plan contemplated that the “obligations and liabilities of the constituent corporations” continue as a charge upon the assets of the successor corporation emerging from the consolidation, their dividend claims survive on this basis. This District Court — correctly, we think — ■ concluded that claims for undeclared dividends are not external debts like those of corporate creditors, and that only liabilities and obligations of that nature are comprehended within the language in question used in the plan. See Federal United Corp. v. Havender, 24 Del.Ch. 318, 11 A.2d 331 (1940).
. We see no need to address the issue of the effect of the by-law amendment in 1964, since Schwabacher stands in the way of relief on that theory as well. Appellants also assert that their efforts on behalf of the preferred stockholders resulted in the payment of a preferred dividend in 1969, and they complain here of the denial of their motion for allowance of expenses and attorney’s fees. This motion was initially denied by the District Court in an order entered January 29, 1970 (Matthews, D. J.), but “without prejudice to plaintiffs’ attorney to renew the motion at the conclusion of this litigation.” In the Memorandum Opinion and Order of December 16, 1971, immediately before us, the District Court (Smith, D. J.) explicitly recognized that this matter remains open in accordance with the earlier order.
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_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SCHNEIDER v. RUSK, SECRETARY OF STATE.
No. 251.
Decided February 18, 1963.
Milton V. Freeman, Robert E. Herzstein, Horst Kur-nick and Charles A. Reich for petitioner.
Solicitor General Cox, Assistant Attorney General Miller, J. William Doolittle, Beatrice Rosenberg and J. F. Bishop for respondent.
Jack Wasserman, David Carliner and Melvin L. Wulf for the American Civil Liberties Union, as amicus curiae.
Per Curiam.
Trial of this case should have been before a three-judge District Court convened pursuant to 28 U. S. C. §§ 2282, 2284, as petitioner requested. Her complaint explicitly-sought an -“injunction restraining the enforcement, operation or execution of . . . [an] Act of Congress” — § 352 (a)(1) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1484 (a)(1), which provides that a naturalized American citizen shall lose his nationality by “having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated . . . .” The District Court concluded that petitioner’s complaint presented no substantial constitutional issue and denied petitioner’s motion to convene a three-judge court, relying on Lapides v. Clark, 85 U. S. App. D. C. 101, 176 F. 2d 619 (1949), cert. denied, 338 U. S. 860, in which the Court of Appeals for the District of Columbia Circuit had directly upheld the predecessor of a companion provision, § 352 (a)(2) of the 1952 Act, 8 U. S. C. § 1484 (a)(2), which deprived the naturalized American of his citizenship for residing for five years in any foreign state. The Court of Appeals’ per curiam affirmance was also based on Lapides. Although no view is here intimated as to the merits of the constitutional question in the present case, we disagree with the conclusion of the courts below as to the substan-tiality of that issue. The intervening decisions of this Court in Perez v. Brownell, 356 U. S. 44, and Trop v. Dulles, 356 U. S. 86, reveal that the constitutional questions involving deprivation of nationality which were presented to the district judge were not plainly insubstantial. The single-judge District Court was therefore powerless to dismiss the action on the merits, and should have convened a three-judge court. Ex parte Northern Pac. B. Co., 280 U. S. 142, 144; Stratton v. St. Louis S. W. R. Co., 282 U. S. 10, 15; Ex parte Poresky, 290 U. S. 30; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713. The judgments below are vacated and the case is remanded to the District Court for expeditious action consistent with the views here expressed.
So ordered.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_lcdispositiondirection
|
B
|
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
BOWEN v. UNITED STATES POSTAL SERVICE et al.
No. 81-525.
Argued October 6, 1982
Decided January 11, 1983
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stevens, and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Marshall and Blackmun, JJ., joined, and in all but Part IV of which Rehnquist, J., joined, post, p. 230. Rehnquist, J., filed a dissenting opinion, post, p. 246.
William B. Poff argued the cause for petitioner. With him on the briefs were Baynard E. Harris and John D. Eure.
Barbara E. Etkind argued the cause for the federal respondent. With her on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Leonard Schaitman, Michael Jay Singer, and Stephen E. Alpern. Asher W. Schwartz argued the cause for respondent Union. With him on the brief were Darryl J. Anderson, Anton G. Hajjar, Laurence Gold, and Marsha Berzon.
Eugene B. Granof and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Justice Powell
delivered the opinion of the Court.
The issue is whether a union may be held primarily liable for that part of a wrongfully discharged employee’s damages caused by his union’s breach of its duty of fair representation.
I
On February 21, 1976, following an altercation with another employee, petitioner Charles V. Bowen was suspended without pay from his position with the United States Postal Service. Bowen was a member of the American Postal Workers Union, AFL-CIO, the recognized collective-bargaining agent for Service employees. After Bowen was formally terminated on March 30, 1976, he filed a grievance with the Union as provided by the collective-bargaining agreement. When the Union declined to take his grievance to arbitration, he sued the Service and the Union in the United States District Court for the Western District of Virginia, seeking damages and injunctive relief.
Bowen’s complaint charged that the Service had violated the collective-bargaining agreement by dismissing him without “just cause” and that the Union had breached its duty of fair representation. His evidence at trial indicated that the responsible Union officer, at each step of the grievance process, had recommended pursuing the grievance but that the national office, for no apparent reason, had refused to take the matter to arbitration.
Following the parties’ presentation of evidence, the court gave the jury a series of questions to be answered as a special verdict. If the jury found that the Service had discharged Bowen wrongfully and that the Union had breached its duty of fair representation, it was instructed to determine the amount of compensatory damages to be awarded and to apportion the liability for the damages between the Service and the Union. In explaining how liability might be apportioned, the court instructed the jury that the issue was left primarily to its discretion. The court indicated, however, that the jury equitably could base apportionment on the date of a hypothetical arbitration decision — the date at which the Service would have reinstated Bowen if the Union had fulfilled its duty. The court suggested that the Service could be liable for damages before that date and the Union for damages thereafter. Although the Union objected to the instruction allowing the jury to find it liable for any compensatory damages, it did not object to the manner in which the court instructed the jury to apportion the damages in the event apportionment was proper.
Upon return of a special verdict in favor of Bowen and against both defendants, the District Court entered judgment, holding that the Service had discharged Bowen without just cause and that the Union had handled his “apparently meritorious grievance... in an arbitrary and perfunctory manner....” 470 F. Supp. 1127, 1129 (1979). In so doing, both the Union and the Service acted “in reckless and callous disregard of [Bowen’s] rights.” Ibid. The court found that Bowen could not have proceeded independently of the Union and that if the Union had arbitrated Bowen’s grievance, he would have been reinstated. Ibid.
The court ordered that Bowen be reimbursed $52,954 for lost benefits and wages. Although noting that “there is authority suggesting that only the employer is liable for damages in the form of backpay,” it observed that “this is a case in which both defendants, by their illegal acts, are liable to plaintiff.... The problem in this case is not one of liability but rather one of apportionment... Id., at 1130-1131. The jury had found that the Union was responsible for $30,000 of Bowen’s damages. The court approved that apportionment, ordering the Service to pay the remaining $22,954.
On appeal by the Service and the Union, the Court of Appeals for the Fourth Circuit overturned the damages award against the Union. 642 F. 2d 79 (1981). It accepted the District Court’s findings-of fact, but held as a matter of law that, “[a]s Bowen’s compensation was at all times payable only by the Service, reimbursement of his lost earnings continued to be the obligation of the Service exclusively. Hence, no portion of the deprivations... was chargeable to the Union. Cf. Vaca v. Sipes, 386 U. S. 171, 195... (1967).” Id., at 82 (footnote omitted). The court did not alter the District Court’s judgment in any other respect, but “affirmed [it] throughout” except for the award of damages against the Union. Id., at 83.
Thus, the Court of Appeals affirmed the District Court’s apportionment of fault and its finding that both the Union and the Service had acted “in reckless and callous disregard of [Bowen’s] rights.” Indeed, the court accepted the District Court’s apportionment of fault so completely that it refused to increase the $22,964 award against the Service to cover the whole of Bowen’s injury. Bowen was left with only a $22,964 award, whereas the jury and the District Court had awarded him lost earnings and benefits of $52,954— the undisputed amount of his damages.
HH HH
In Vaca v. Sipes, 386 U. S. 171 (1967), the Court held that an employee such as Bowen, who proves that his employer violated the labor agreement and his union breached its duty of fair representation, may be entitled to recover damages from both the union and the employer. The Court explained that the award must be apportioned according to fault:
“The governing principle, then, is to apportion liability between the employer and the union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer.” Id., at 197-198.
Although Vaca’s governing principle is well established, its application has caused some uncertainty. The Union argues that the Court of Appeals correctly determined that it cannot be charged with any damages resulting from a wrongful discharge. Vaca’s “governing principle,” according to the Union, requires that the employer be solely liable for such damages. The Union views itself as liable only for Bowen’s litigation expenses resulting from its breach of duty. It finds support for this view in Vaca’s recognition that a union’s breach of its duty of fair representation does not absolve an employer of all the consequences of a breach of the collective-bargaining contract. See id., at 196. The Union contends that its unrelated breach of the duty of fair representation does not make it liable for any part of the discharged employee’s damages; its default merely lifts the bar to the employee’s suit on the contract against his employer.
The difficulty with this argument is that it treats the relationship between the employer and employee, created by the collective-bargaining agreement, as if it were a simple contract of hire governed by traditional common-law principles. This reading of Vaca fails to recognize that a collective-bargaining agreement is much more than traditional common-law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy.
A
In Vaca, as here, the employee contended that his employer had discharged him in violation of the collective-bargaining agreement and that the union had breached its duty of fair representation by refusing to take his claim to arbitration. He sued the union in a Missouri state court for breach of its duty. On finding that both the union and the employer were at fault, the jury decided — and the Missouri Supreme Court agreed — that the union was entirely liable for the employee’s lost backpay. See id., at 195.
On appeal, this Court was required to resolve a number of issues. One was whether an employee who had failed to exhaust the grievance procedure prescribed in the bargaining agreement could bring suit for a breach of that agreement. In Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court had held that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Id., at 652 (emphasis in original; footnote omitted). Because the employee in Republic Steel had made no attempt to exhaust the grievance procedure, it was necessary for the Court to consider only the union’s interest in participating in the administration of the contract and the employer’s interest in limiting administrative remedies. The Court noted, however, that if “the union refuses to press or only perfunctorily presses the individual’s claim,” federal labor policy might require a different result. Ibid.
Vaca presented such a situation. The union, which had the “sole power under the contract to invoke the higher stages of the grievance procedure,” had chosen not to take the employee’s claim to arbitration. See 386 U. S., at 185. Thus the Court faced a strong countervailing interest: the employee’s right to vindicate his claim. Vaca resolved these conflicting interests by holding that an employee’s failure to exhaust the contractual grievance procedures would bar his suit except when he could show that the union’s breach of its duty of fair representation had prevented him from exhausting those remedies. See ibid. The Vaca Court then observed:
“It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice.” Id., at 185-186.
The interests thus identified in Vaca provide a measure of its principle for apportioning damages. Of paramount importance is the right of the employee, who has been injured by both the employer’s and the union’s breach, to be made whole. In determining the degree to which the employer or the union should bear the employee’s damages, the Court held that the employer should not be shielded from the “natural consequences” of its breach by wrongful union conduct. Id., at 186. The Court noted, however, that the employer may have done nothing to prevent exhaustion. Were it not for the union’s failure to represent the employee fairly, the employer’s breach “could [have been] remedied through the grievance process to the employee-plaintiff’s benefit.” The fault that justifies dropping the bar to the employee’s suit for damages also requires the union to bear some responsibility for increases in the employee’s damages resulting from its breach. To hold otherwise would make the employer alone liable for the consequences of the union’s breach of duty.
Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976), presented an issue analogous to that in Vaca: whether proof of a breach of the duty of fair representation would remove the bar of finality from an arbitral decision. We held that it would, in part because a contrary rule would prevent the employee from recovering
“even in circumstances where it is shown that a union has manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members.” 424 U. S., at 570.
It would indeed be unjust to prevent the employee from recovering in such a situation. It would be equally unjust to require the employer to bear the increase in the damages caused by the union’s wrongful conduct. It is true that the employer discharged the employee wrongfully and remains liable for the employee’s backpay. See Vaca, 386 U. S., at 197. The union’s breach of its duty of fair representation, however, caused the grievance procedure to malfunction resulting in an increase in the employee’s damages. Even though both the employer and the union have caused the damage suffered by the employee, the union is responsible for the increase in damages and, as between the two wrongdoers, should bear its portion of the damages.
Vaca’s governing principle reflects this allocation of responsibility. As the Court stated, “damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer.” Id., at 197-198 (emphasis added). The Union’s position here would require us to read out of the Vaca articulation of the relevant principle the words emphasized above. It would also ignore the interests of all the parties to the collective agreement — interests that Vaca recognized and Hines illustrates.
B
In approving apportionment of damages caused by the employer’s breach of the collective-bargaining agreement and the union’s breach of its duty of fair representation, Faca did not apply principles of ordinary contract law. For, as the Court has noted, a collective-bargaining agreement “is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 578 (1960). In defining the relationships created by such an agreement, the Court has applied an evolving federal common law grounded in national labor policy. See Steelworkers v. American Manufacturing Co., 363 U. S. 564, 567 (1960); Textile Workers v. Lincoln Mills, 353 U. S. 448, 456-457 (1957).
Fundamental to federal labor policy is the grievance procedure. See John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 549 (1964); Warrior & Gulf Navigation Co., supra, at 578. It promotes the goal of industrial peace by providing a means for labor and management to settle disputes through negotiation rather than industrial strife. See John Wiley & Sons, Inc., supra, at 549. Adoption of a grievance procedure provides the parties with a means of giving content to the collective-bargaining agreement and determining their rights and obligations under it. See Warrior & Gulf Navigation Co., supra, at 581.
Although each party participates in the grievance procedure, the union plays a pivotal role in the process since it assumes the responsibility of determining whether to press an employee’s claims. The employer, for its part, must rely on the union’s decision not to pursue an employee’s grievance. For the union acts as the employee’s exclusive representative in the grievance procedure, as it does in virtually all matters involving the terms and conditions of employment. Just as a nonorganized employer may accept an employee’s waiver of any challenge to his discharge as a final resolution of the matter, so should an organized employer be able to rely on a comparable waiver by the employee’s exclusive representative.
There is no unfairness to the union in this approach. By seeking and acquiring the exclusive right and power to speak for a group of employees, the union assumes a corresponding duty to discharge that responsibility faithfully — a duty which it owes to the employees whom it represents and on which the employer with whom it bargains may rely. When the union, as the exclusive agent of the employee, waives arbitration or fails to seek review of an adverse decision, the employer should be in substantially the same position as if the employee had had the right to act on his own behalf and had done so. Indeed, if the employer could not rely on the union’s decision, the grievance procedure would not provide the “uniform and exclusive method for [the] orderly settlement of employee grievances,” which the Court has recognized is essential to the national labor policy. See Clayton v. Automobile Workers, 451 U. S. 679, 686-687 (1981).
The principle announced in Vaca reflects this allocation of responsibilities in the grievance procedure — a procedure that contemplates that both employer and union will perform their respective obligations. In the absence of damages apportionment where the default of both parties contributes to the employee’s injury, incentives to comply with the grievance procedure will be diminished. Indeed, imposing total liability solely on the employer could well affect the willingness of employers to agree to arbitration clauses as they are customarily written.
Nor will requiring the union to pay damages impose a burden on the union inconsistent with national labor policy. It will provide an additional incentive for the union to process its members’ claims where warranted. See Vaca, 386 U. S., at 187. This is wholly consistent with a union’s interest. It is a duty owed to its members as well as consistent with the union’s commitment to the employer under the arbitration clause. See Republic Steel, 379 U. S., at 653.
► — I > — ( I — I
The Union contends that Czosek v. O’Mara, 397 U. S. 25 (1970), requires a different reading of Vaca and a different weighing of the interests our cases have developed. Czosek, however, is consistent with our holding today. In Czosek, employees of the Erie Lackawanna Railroad were placed on furlough and not recalled. They brought suit against the railroad for wrongful discharge and against their union for breaching its duty of fair representation. They alleged that the union had arbitrarily and capriciously refused to process their claims against the railroad. See 397 U. S., at 26. The District Court dismissed the claim against the railroad because the employees had not pursued the administrative remedies provided by the Railway Labor Act. It dismissed the claim against the union because the employees’ ability to pursue an administrative remedy on their own absolved the union of any duty. The Court of Appeals for the Second Circuit affirmed the dismissal of the claim against the railroad but found that the employees had stated a claim against the union. Even though the employees had a right to seek full redress from an administrative board, the union still had a duty to represent them fairly. See Conley v. Gibson, 355 U. S. 41 (1957).
This Court affirmed. In so doing, it addressed the union’s concern that if the railroad were not joined as a party, the union might be held responsible for damages for which the railroad was wholly or partly responsible. The Court stated:
“[Jjudgment against [the union] can in any event be had only for those damages that flowed from [its] own conduct. Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer.” 397 U. S., at 29 (footnote omitted).
Although the statement is broadly phrased, it should not be divorced from the context in which it arose. The Railway Labor Act provided the employees in Czosek with an alternative remedy, which they could have pursued when the union refused to process their grievances. Because the union’s actions did not deprive the employees of immediate access to a remedy, it did not increase the damages that the employer otherwise would have had to pay. The Court therefore stated that the only damages flowing from the union’s conduct were the added expenses the employees incurred. This is consistent with Vaca’s recognition that each party should bear the damages attributable to its fault.
> HH
In this case, the findings of the District Court, accepted by the Court of Appeals, establish that the damages sustained by petitioner were caused initially by the Service’s unlawful discharge and increased by the Union’s breach of its duty of fair representation. Accordingly, apportionment of the damages was required by Vaca. We reverse the judgment of the Court of Appeals and remand for entry of judgment allocating damages against both the Service and the Union consistent with this opinion.
It is so ordered.
The jury sat only as an advisory panel on Bowen’s claims against the Service. See 28 U. S. C. § 2402 (“Any action against the United States under section 1346 shall be tried by the court without a jury”).
Question 3 of the special verdict stated: “If [you find that the Union breached its duty of fair representation and/or the Service discharged Bowen without just cause], state from a preponderance of the evidence or with reasonable certainty the amount of compensatory damages to which [Bowen] is entitled.” App. to Pet. for Cert. A21-A22.
Question 8 stated: “If compensatory damages are awarded by your answer to Question 3, state the amount, if any, that should be attributable to the defendant Union and the amount, if any, that should be attributable to the defendant Postal Service.” Id., at A22.
Counsel for the Union stated: “Your Honor, in respect to this special verdict form, the [Union] would object to any verdict or any question here which would allow the jury to return a judgement against the [Union] for any form... of wages. Traditionally, the Union does not pay wages. And these damages are wholly assessable to the [Service], if at all.” 3 Record 611-612.
In a motion for judgment notwithstanding the verdict, counsel for the Union reasserted that the “amount of back wages awarded [Bowen] by the jury against the [Union] is as a matter of law wholly assessable against the employer.” 1 Record, Item 37, ¶ 2.
The District Court had instructed the jury that both the Union and the Service could be liable for punitive damages if either had acted “maliciously or recklessly or in callous disregard of the rights of the Plaintiff [Bowen].” 3 Record 597. The jury found that the Service and the Union were liable for punitive damages of $30,000 and $10,000, respectively. App. to Pet. for Cert. A22. The District Court determined, however, that punitive damages could not be assessed against the Service because of sovereign immunity. 470 F. Supp., at 1131. Although the court found that the Union’s actions supported the jury’s award of punitive damages, it set the award aside. It concluded that it would be unfair to hold the Union liable when the Service was immune. Ibid. Bowen did not appeal the District Court’s decision on this point.
The grievance-arbitration clause contained in the contract between the Service and the Union provides for a four-step grievance procedure. The employee may initiate the grievance by discussing it with his supervisor. The Union has discretion to appeal on the employee’s behalf and can elect to pursue the grievance through the next three steps. If the grievance is not settled, the Union may refer the grievance to arbitration. See 1 Record, Item 25, Exhibit 1.
Although Bowen could have appealed his discharge to the Civil Service Commission, his right to do so expired 15 days after notice of the Service’s action. Moreover, by choosing to pursue his administrative remedies, Bowen would have “waive[d] access to any procedures under the National Agreement beyond Step 2B of the Grievance-Arbitration Procedures.” App. 90-91. By choosing the remedy provided by the grievance procedure, he was prevented from presenting his claim to the Civil Service Commission.
The District Court found as a fact that if Bowen’s grievance had been arbitrated he would have been reinstated by August 1977. Lost wages after that date were deemed the fault of the Union: “While the [Service] set this case in motion with its discharge, the [Union’s] acts, upon which [Bowen] reasonably relied, delayed the reinstatement of [Bowen] and it is a proper apportionment to assign fault to the [Union] for approximately two-thirds of the period [Bowen] was unemployed up to the time of trial.” 470 F. Supp., at 1131.
In a footnote added after the opinion was first filed, the court noted that it made “no revision in the judgment of $22,954.12 against the Postal Service. In this connection we note that no appeal was entered by [Bowen] from the judgment against the Service in the amount of $22,954.12.” 642 F. 2d, at 82, n. 6.
The court’s view that the judgment against the Service could not be increased because of Bowen’s failure to appeal is erroneous. Bowen won an unambiguous victory in the District Court. He established that he had been discharged by the employer without just cause and that the Union had breached its duty of fair representation. The amount of lost wages and benefits was not in dispute, and the jury and the District Court awarded him all of his damages, apportioning them between the Union and the Service. Bowen had no reason to be unhappy with the award and should not have been deprived of the full amount of his compensatory damages because of his failure to cross-appeal.
Justice White’s dissent asserts that the “rationale” of apportioning damages, applied by the Court today, “has been rejected by every Court of Appeals that has squarely considered it.” See post, at 231, and n. 1. Apart from the fact that we apply the rationale — the “governing principle” — articulated in Vaca, few Courts of Appeals have stated a rationale nor has there been the consistency in result perceived by the dissent. Only one case cited by the dissent has declined to apportion damages after considering the issue fully. See Seymour v. Olin Corp., 666 F. 2d 202 (CA5 1982). Others, such as the opinion below, have rejected apportionment after giving the issue only minimal consideration. See 642 F. 2d 79, 82 (CA4 1981) (simply citing Vaca, but not Vaca’s governing principle); Milstead v. International Brotherhood of Teamsters, Local Union 957, 649 F. 2d 395, 396 (CA61981) (finding that damages may not be apportioned on the basis of St. Clair v. Local 515, 422 F. 2d 128 (CA6 1969), which found that damages may be apportioned). Some courts have not apportioned damages, but have articulated apparently conflicting rationales. See Wyatt v. Interstate & Ocean Transport Co., 623 F. 2d 888, 892-893 (CA4 1980) (refusing to hold union liable for portion of damages caused by its breach but stating that damages can be apportioned when the union “exacerbate[s the employee’s] loss or diminution of wages, beyond that for which the employer could be charged”); De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F. 2d 281, 289-290 (CAI) (refusing to hold union liable for portion of damages caused by its default but stating that apportionment would be proper where there was evidence “that but for the Union’s conduct the plaintiffs would have been reinstated or reimbursed at an earlier date”), cert, denied, 400 U. S. 877 (1970). While it is true these cases reach the same result as the dissent, they do not represent an affirmation of its reasoning.
Other cases have recognized that damages should be apportioned between the union and the employer. See Smart v. Ellis Trucking Co., 580 F. 2d 215, 219, n. 6 (CA6 1978) (on remand, trial court to determine “the extent to which the employer’s liability for any backpay may be limited” because of its reliance on arbitration proceeding); Harrison v. Chrysler Corp., 558 F. 2d 1273, 1279 (CA7 1977) (“union which breaches its duty of fair representation may be sued by an employee for lost pay attributable to the breach”); Ruzicka v. General Motors Corp., 523 F. 2d 306, 312 (CA6 1975) (“Union... liable for that portion of Appellant’s injury representing ‘increases if any in those damages [chargeable to the employer] caused by the union’s refusal to process the grievance’ ”) (brackets in Court of Appeals opinion); St. Clair v. Local 515, supra, at 132 (holding union “liable for nothing more [than damages measured by backpay] and perhaps for less” because Vaca requires those damages to be apportioned between the employer and union according to each party’s fault). See also Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif. L. Rev. 663, 817-824 (1973) (employer’s liability should not be increased by union’s default); Comment, Apportionment of Damages in DFR/Contract Suits: Who Pays for the Union’s Breach, 1981 Wis. L. Rev. 155 (same). In sum, a fair reading of these cases reveals that, contrary to the dissent’s assertion, the Courts of Appeals have been far from unanimous in either their results or their rationales.
The Court had previously held in Smith v. Evening News Assn., 371 U. S. 195 (1962), that an employee may sue his employer for a breach of the collective-bargaining agreement under § 301 of the Labor Management Relations Act. See 29 U. S. C. § 185. Because the contract in Smith did not contain a grievance-arbitration procedure that required exhaustion, Smith did not reach the issue presented in Vaca. See 371 U. S., at 196, n. 1.
The Court based its decision on Congress’ express approval of contract grievance procedures as a preferred method of settling disputes, the union’s interest in actively participating in the continuing administration of the contract, and the employer’s interest in limiting the choice of remedies available to aggrieved employees. See 379 U. S., at 653.
We note that this is not a situation in which either the union or the employer has participated in the other’s breach. See Vaca, 386 U. S., at 197, n. 18.
Although the union remains primarily responsible for the portion of the damages resulting from its default, Vaca made clear that the union’s breach does not absolve the employer of liability. Thus if the petitioner in this ease does not collect the damages apportioned against the Union, the Service remains secondarily liable for the full loss of backpay.
In Vaca, the jury had found the union responsible for the entire amount of damages suffered by the employee. The judgment upholding the verdict therefore was reversed. Justice White’s dissent reasons that because Vaca found that the employer is not absolved from liability by the union’s breach, the employer must be solely responsible. The first proposition, however, does not require the second. Thus, Vaca’s recognition that the employer “may not hide behind the union’s wrongful act” does not answer the question posed by this case, how damages should be apportioned as between the two wrongdoers, the union and the employer. On this point, the explicit language of Vaca’s governing principle makes clear that the union is responsible for increases in the employee's damages flowing from the wrongful discharge, a point which the dissent glosses over.
Although the Court in Vaca concluded that the union had not breached its duty, it observed that “[i]n this case, even if the Union had breached its duty, all or almost all of [the employee’s] damages would still be attributable to his allegedly wrongful discharge.” Id., at 198. Assuming that such a breach did occur, the facts are not sufficiently clear to determine when the breach would have occurred or the portion of damages attributable to each party’s fault. Thus this speculative observation is not inconsistent with the Court’s precisely worded statement of the governing principle.
The parties to the collective-bargaining agreement, of course, may choose not to include a grievance procedure supervised by the union or, if they do, may choose not to make the procedure exclusive. See Vaca, supra, at 184, n. 9; Republic Steel Corp. v. Maddox, 379 U. S. 650, 657-658 (1965); cf. 29 U. S. C. § 159(a) (employee may present grievances to his employer “without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect...”). Most collective-bargaining agreements, however, contain exclusive grievance-arbitration procedures and give the union power to supervise the procedure. See Feller, supra n. 8, at 742, 752-753. When the collective-bargaining agreement provides the union with sole authority to press an employee’s grievance, the union acts as the employee’s exclusive representative in the grievance-arbitration procedure. See Vaca, supra, at 191-192.
Under the analysis of Justice White’s dissent, the employer may not rely on the union’s decision not to pursue a grievance. Rather it can prevent continued liability only by reinstating the discharged employee. See post, at 238-239. This leaves the employer with a dubious option: it must either reinstate the employee promptly or leave itself exposed to open-ended liability. If this were the rule, the very purpose of the grievance procedure would be defeated. It is precisely to provide the exclusive means of resolving this kind of dispute that the parties agree to such a procedure and national labor policy strongly encourages its use. See Republic Steel, supra, at 653.
When the union has breached its duty of fair representation, the dissent justifies its rule by arguing that “only the employer ha[s] the continuing ability to right the wrong... by reinstating” the employee, an ability that the union lacks. See post, at 239. But an employer has no way of knowing that a failure to carry a grievance to arbitration constitutes a breach of duty. Rather than rehiring, as the dissent suggests, the employer reasonably could assume that the union had concluded the discharge was justified. The union would have the option, if it realized it had committed an arguable breach of duty, to bring its default to the employer’s attention. Our holding today would not prevent a jury from taking such action into account.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NAKUTIN v. UNITED STATES.
(Circuit Court of Appeals, Seventh Circuit.
May 21, 1925.
Rehearing Denied September 28, 1925.)
No. 3545.
1. Criminal law <@=3371(2) — Evidence of finding other stolen property in accused’s place of business than that involved in prosecution held admissible.
In prosecution for possession of stolen property, part of interstate shipment, testimony of witness that he had sworn out and signed search warrant, and went with officers to accused’s place of business in search of stolen property, which was not part of interstate shipment, and that such property was found, together with property which was part of interstate shipment, helé admissible, in exception to rule against proof of extraneous offenses.
2. Receiving stolen goods <@=38(3)— Evidence held sufficient to show that property found in accused’s place of business was stolen from interstate shipment.
In prosecution for having possession of stolen property, part of interstate shipment, evidence showing consignment of hosiery of same make as found in accused’s place of business, when delivered, was one case short, and which identified case in defendant’s possession as part of shipment, helé sufficient to show property was stolen.
3. Receiving stolen goods <@=38(4) — Evidence held sufficient to show knowledge on part of accused that property was stolen.
In prosecution for possession of stolen property, part of interstate shipment, evidence of contradictory statements by accused as to where he got property, attempts at concealment’, and sale price helé sufficient to show knowledge that it was stolen.
In Error to, the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Ralph Nakutin, alias Ralph Natkin, was convicted of having possession of property, part of interstate shipment, knowing it to have been stolen, and he brings error.
Affirmed.
Jacob Levy, of Chicago, 111., for plaintiff in error. ■
Edward J. Hess, of Chicago, 111., for the United States.
Before ALSCIIULER, EVANS, and PAGE, Circuit Judges.
PAGE, Circuit Judge.
Plaintiff in error (called defendant) was convicted of having possession of “Onyx” and “Concordia” hosiery, parts of two interstate shipments, knowing it to have been stolen. The “Onyx” and “Concordia” hosiery was found in defendant’s place of business by police officers and others looking, under a search warrant, for “As You Like It” hosiery, which was no part of an interstate shipment, nor was it in any way related to the hosiery in question here.
A witness, present when the search was made, was, over objection, permitted by the court to testify that he was manager for Beatum & Co., whose place had been robbed, that he had sworn out and signed the search warrant, and that he and the officers went to defendant’s place of business in search of, and found, “As You Like It” hosiery which had been stolen. There was no error in the admission of that evidence. Walsh v. United States, 174 F. 615, 98 C. C. A. 461; Bottomley v. United States, 3 Fed. Cas. 968, No. 1,688; Lincoln v. Claflin, 7 Wall. 132, 138, 19 L. Ed. 106; King v. Wylie, 4 Bosanquet & P. 91, 92; Irving et al. v. Motly, 7 Bingham, 543, 548; Sapir v. United States, 174 F. 219, 221, 98 C. C. A. 227; N. Y. Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591, 599, 6 S. Ct. 877, 29 L. Ed. 997; Castle v. Bullard, 64 U. S. (23 How.) 172, 187, 16 L. Ed. 424. It should be noted that the cases state an exception to the general rule that evidence of other transactions is not admissible.
The only other objection urged is that there was no evidence to show that the hosiery was stolen, or that defendant knew it was stolen. The evidence showed a shipment of “Concordia” hosiery from Philadelphia to Bullocks, Incorporated, a department store in Los Angeles, Cal., on June 27,1924, and that on their arrival, July 13, 1924, one ease was missing. Part of that shipment was positively identified in defendant’s possession on July 10th, three days before the car carrying the shipment arrived in Los Angeles.
As to defendant’s knowledge that the hosiery was stolen, there was evidence before the jury showing contradictory statements by defendant as to where he got the hosiery, and of attempts at concealment of parts of the hosiery; that he bought it for one-half the wholesale price, and sold it at retail for a price that yielded him a good profit, and yet that was far below the wholesale price; that, he had large quantities of new goods in the original packages from three different, but recent, thefts. Prom this and other evidence there was clearly a question for the jury.
The judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mary Jean GARDNER, Plaintiff-Appellant, v. SOUTHERN RAILWAY SYSTEMS, Defendant-Appellee.
Nos. 81-2307, 81-2459.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 26, 1982.
Decided April 22, 1982.
David E. Gray, Bowers, Harrison & Kent, Evansville, Ind., for defendant-appellee.
David V. Miller, Grove, Miller & Krohn, Evansville, Ind., for plaintiff-appellant.
Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and BARTELS, Senior District Judge.
Of the United States District Court for the Eastern District of New York.
PER CURIAM.
Appellant, Mary Jean Gardner, personal representative of the estate of her late husband, Gregory Gardner, appeals from a judgment of the United States District Court for the Southern District of Indiana, Evansville Division (Brooks, J.), after a jury trial in favor of appellee, the Southern Railway Company.
Appellant raises two issues on appeal: (1) whether the district court erred by excluding appellant’s evidence of a prior collision through which appellant sought to charge the Railway with notice of a dangerous condition at a railway intersection and (2) whether the district court erred in allowing appellee to amend its answer shortly before trial, denying that the deceased stopped his truck prior to crossing the railroad tracks. On cross-appeal, the Railway claims that the district court’s denial of its Motion for Bill of Costs was an abuse of discretion. We affirm as to the issues raised by the appellant and reverse and remand for further proceedings as to the issue raised by the Railway.
This action arises out of a fatal collision involving the deceased, Gregory Gardner, which occurred at a railway crossing at approximately 9:45 A.M. on February 24, 1978 in Pike County, Indiana while deceased was driving an empty coal-hauling truck north in Pike County Road 100 West. While crossing the railroad’s tracks at the junction of County Road 100 West, he was struck and killed by a westbound Southern Railway Company train, consisting of three engines, one car and a caboose.
In her complaint, filed February 4, 1980, appellant claimed that at the time of the accident, the Railway was negligent in failing to maintain its crossing so as to provide decedent with an unobstructed view of the Railway’s tracks as required by Indiana Code 8-6-7.6-1. The testimony of the officer in charge of investigating the accident, ex-State Trooper Davis, established that at the time of the collision deceased did not have the sight distance required by the Indiana Code because of trees, brush and undergrowth which obstructed his view.
Sometime following the February 24, 1978 collision, through discovery proceedings, appellant discovered that on November 30, 1976, another fatal collision involving the Railway’s train and a truck had occurred at the same crossing. An examination of photographs taken at the time of that collision revealed that the physical conditions at the time were essentially the same as those on February 24, 1978. The Indiana State Police Accident Report made of that prior accident disclosed that the accident occurred under substantially the same circumstances as the collision involving the deceased. However, on April 18, 1981, the Railway filed a Motion in Limine requesting the court to exclude all evidence of the prior collision. On April 15, 1981, appellant filed its Memorandum in Opposition to this Motion maintaining that by reason of the prior accident, the Railway was charged with notice of the extra-hazardous conditions at the crossing fifteen months before the collision involving the deceased. At its final pre-trial conference on June 12, 1981, the Court granted the Railway’s Motion in Limine.
At trial, appellant offered to prove notice to the Railway of a dangerous and hazardous condition by other means such as photographs of the crossing taken on the day of the prior accident and the testimony of the two Indiana State Police Officers who investigated the prior accident. The photographs and the testimony of both officers with respect to their investigation of the collision were excluded. The Court did, however, permit one officer to testify (without being identified as a police officer) to the fact that he had been at the crossing prior to the subject collision and to relate what he had observed.
We refer now to the second issue raised by appellant. In its original answer, filed March 6, 1980, the Railway admitted that the deceased stopped his vehicle at the fatal intersection. Additionally, on April 15, 1980, the Railway filed a Request for Admissions in which it asked appellant to admit that the deceased had stopped his vehicle at the critical intersection. Nevertheless, on May 15, 1981, the final day of discovery, the Railway moved the court for leave to amend its answer to raise as a factual question the issue of whether or not the deceased had stopped his truck prior to attempting to cross the railroad tracks.
There was other evidence concerning the stop at the railroad crossing on the day of the collision. The Railway’s employee, Gordon Byrd, obtained a tape-recorded statement from a witness, Randal Lewis, who was driving a vehicle a short distance behind the deceased at the time of the accident. At that time, Lewis said that he saw no taillights go on in the rear of the deceased’s truck. This statement was used by the Railway to impeach Lewis at trial. The tape recording had never been turned over to apj)ellant during discovery although it was submitted to the jury with appellant’s consent.
Our final consideration is the Railway’s cross-appeal. A Bill of Costs was filed by the Railway on July 9, 1981, wherein it requested that certain expenses amounting to Two Thousand Nine Hundred Fifty-one Dollars and Sixty-five Cents ($2,951.65) incurred by the Railway in connection with the trial be taxed to the appellant. Appellant filed her Objection to the demand for Taxation of Costs and Memorandum in Support of her Objections thereto, on July 15, 1981. The Railway’s Reply to Plaintiff’s Objection to Taxation of Costs was filed on July 24, 1981. No other pleadings were filed on this issue and no hearing was held. On August 3, 1981, the district court issued an order denying the Railway’s motion for Bill of Costs. But the order contained no finding that the Railway had been guilty of any misconduct or that appellant was indigent. Accordingly, the Railway cross-appealed the denial of its Bill of Costs pursuant to 28 U.S.C. § 1291.
PRIOR ACCIDENT
We agree with appellant’s interpretation of the law applicable to prior accident evidence in railroad collision cases. A railroad can be found negligent not only in the manner in which it operates its trains, but also because it failed to take adequate precautions at a grade crossing which it knew or should have known to be extra-hazardous. Stevens v. Norfolk & W. Ry. Co., 171 Ind.App. 334, 357 N.E.2d 1, 4 (1977); see also Menke v. Southern Railway Company, 603 F.2d 1281 (7th CirM979). Evidence of prior accidents which occurred at that crossing under similar conditions may be admitted to show that the railroad had prior knowledge that a dangerous and hazardous condition existed. New York Central Railroad Co. v. Sarich, 133 Ind.App. 516, 180 N.E.2d 388, 398 (Ind.App.Ct.1965); 5A Personal Injury § 1.05[l][j], pp. 124-27. Moreover, as the Third Circuit and other circuits suggest, it is appropriate to relax the requirement of similar conditions when the offer of proof is to show notice of the dangerous character of the crossing rather than defendant’s negligence. Evans v. Pennsylvania Railroad Co., 255 F.2d 205, 210 (3rd Cir. 1958); McCormick, Evidence (Horn Book Series), p. 352; compare McCormick v. Great Western Power Co., 214 Cal. 658, 8 P.2d 145, 81 ALR 678 (1932); City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624 (1902).
The controlling principle in cases of this type, however, appears in Rule 403 of the Federal Rules of Evidence, reading:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Unless we find, therefore, that the district court abused its discretion in excluding the evidence, we must affirm. United States v. Catalano, 491 F.2d 268, 274 (2nd Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974); Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir. 1970).
Judge Brooks undoubtedly considered many factors including photographs in rendering his decision. First, conditions and surrounding circumstances at the crossing at the time of the prior accident on November 30, 1976, were different, at least in some respects, from those which existed on February 24, 1978. Second, because no action was ever brought nor any claim filed on behalf of the previous decedent, it is not known whether conditions at the crossing or decedent’s own negligence were responsible for the 1976 accident. That no action was ever brought may suggest the latter. Third, notwithstanding the ambiguity surrounding the prior accident, the jury might infer from evidence of the prior accident alone that ultra-hazardous conditions existed at the site and were the cause of the later accident without those issues ever having been proved. In any case, the district court permitted appellant to present testimony that the conditions which existed at the crossing at the time of the February 24, 1978 collision had been evident some time l>efore. Thus the dangerous conditions were presented in a non-prejudicial manner. These facts could certainly lead a reasonable person to conclude that the danger of prejudice and delay from admitting such evidence would substantially outweigh its probative value. Under these circumstances, we find no abuse of discretion in excluding this evidence.
THE AMENDED ANSWER
Appellant asserts that the district court erred in allowing the Railway to amend its answer shortly before trial to the prejudice of the appellant and despite undue delay, bad faith and dilatory motive on the part of the Railway. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his or her pleading ’ more than twenty days after it is served “only by leave of court or by written consent of the adverse party: and leave shall be freely given when justice so requires.”
In Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), the leading case upon this question, the Supreme Court stated:
If the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely granted.”
Of course, the Court added, “the grant or denial of an opportunity to amend is within the discretion of the District Court . . . . ” Id.
The Railway pleaded contributory negligence in its original answer and so alerted appellant to the possibility that an argument would be made as to the non-stop. The Railway filed its motion for leave to amend its answer only once it became apparent both that eyewitness Lewis intended to change the story he had originally told the Railway and that appellant had no unimpeachable testimony of deceased’s stopping. Appellant filed her own series of motions at the eleventh hour. In any event, appellant was left with at least twenty-six days following- the Railway’s motion in which to respond, which would seem to have been more than sufficient since appellant knew of all the possible eyewitnesses. Under these circumstances, the district court’s decision seems perfectly reasonable.
Apjiellant also asserts that appellee should have been bound by its admission regarding the deceased’s stopping contained in its own Request for Admissions. Rule 36(b) of the Federal Rules of Civil Procedure indeed provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The rule continues:
Subject to the provisions of Rule 16 governing amendments of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and any party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.
Although the Railway never sought to amend this particular admission, it did seek and obtain leave to amend its answer following the last pre-trial conferences denying that a stop was made by the deceased. The purpose of Rule 36 is to permit the person obtaining the admission to rely thereon in preparation for trial. Compare Moosman v. Blitz, 358 F.2d 686 (2d Cir. 1966). There is no way in which appellant in this case could have relied on such admission to her prejudice in view of the amendment to the Railway’s answer as permitted by the court. Under the circumstances of this case, permission to amend the answer was tantamount to permission to withdraw the admission.
THE CROSS-APPEAL
On cross-appeal, the Railway asserts that the district court’s denial of its Bill of Costs, without finding either that appellee was guilty of some misconduct or that appellant was indigent, was an abuse of discretion. Rule 54(d) of the Federal Rules of Civil Procedure creates a presumption that the prevailing party is entitled to costs. Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959); 10 C. A. Wright and A. R. Miller, Federal Practice and Procedure, Civil, § 2668 at 142 (1973). To overcome that presumption the losing party must show something more than mere good faith on its part. Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 776 (7th Cir. 1975). We have no evidence of such a showing here. Moreover, the district court failed to explain why it denied appellee’s Bill of Costs.
When a trial court refuses to award costs to the prevailing party, it should state its reasons for such disallowance. Unless an appellate court knows why a trial court refused to award costs to the prevailing party, it has no real basis upon which to judge whether the trial court acted within the proper confines of its discretion. Walters v. Roadway Exp., Inc., 557 F.2d 521 (5th Cir. 1977).
Serna v. Manzano, 616 F.2d 1165, 1168 (10th Cir. 1980).
Judgment affirmed except as to costs and remanded for a redetermination of costs and findings in case of disallowance.
. In a number of jurisdictions, before evidence of prior accidents is admissible to show notice, it must be shown that a specific physical or structural condition of the crossing was a proximate or contributing cause of the present collision. 5A Personal Injury § 1.05[l][j], pp. 126-27; see Jewell v. Pennsylvania R.R., 55 Del. 6, 183 A.2d 193 (1962); So. Pac. R.R. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967); So. Pac. R. R. v. Harris, 80 Nev. 426, 395 P.2d 767 (1964).
. In Young v. Illinois Central Gulf R. R. Co., 618 F.2d 332 (5th Cir. 1980), there are so many other rulings constituting abuses of discretion that the case can hardly support the proposition that the simple failure to admit prior accident testimony was itself an abuse.
. Appellant’s Specifications of Negligence and witness lists were filed seven days prior to the original trial date of March 23, 1981 instead of January 15, 1981, as was requested by the court, forcing appellee to seek a continuance. Appellant’s Motion for Leave to Add Additional Witnesses and Exhibits, the first clear indication that appellant intended to offer prior collision evidence, was filed ten days before the rescheduled trial date of April 13, 1981. On May 15, 1981, the last day of discovery before the yet rescheduled trial date of June 15, 1981, appellant added an additional Specification of Negligence. Finally, during trial appellant again moved to amend her allegations to conform to her evidence.
. Rule 54(d) of the Federal Rules of Civil Procedure reads:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . .. (emphasis added).
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_4-3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "due process".
Jesse W. ELMORE, Appellee, v. UNITED STATES of America, Appellant.
No. 72-1280.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 28, 1972.
Decided Sept. 13, 1972.
Stanton R. Koppel, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Walter H. Fleischer, Atty., Dept. of Justice, and Leigh B. Hanes, Jr., U. S. Atty., on brief), for appellant.
Leroy Moran, Roanoke, Va., for appel-lee.
Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.
PER CURIAM:
The plaintiff, a contract carrier for the Postal Service, seeks to recover the value of twenty-three long guns which the Government had withheld from his compensation, because of the loss of such guns while in the Postal Service. The District Court charged the contract carrier with the value of four such guns, which were conclusively shown to have reached the parcel post annex in Roanoke, Virginia, by notices sent to the Police Department of Roanoke, but he declined to charge the contract carrier with the value of the other guns. In doing so, he placed a higher standard of proof upon the United States than was permissible.
The testimony showed an unusual number of losses of long guns (rifles and shotguns) moving through the mails to addressees in the area of Roanoke, Virginia, where the plaintiff, Elmore, had certain contracts for the carriage of mail and parcel post, including moving all mail and parcel post from the railroad station to the main post office and from the main post office to the parcel post annex.
In the course of investigation, a long gun in a package bearing the clear, bold “FIREARM” label, required by postal regulations, was placed in the mails addressed to an addressee in the Roanoke area. In its stock there had been inserted a short range radio transmitter, so that its location could be followed and observed. Carlton D. Traynham, one of Elmore’s drivers, was seen to pick up the parcel and later to load it onto his truck. Instead of unloading it at the parcel post annex, however, he left it in his truck and later drove to his home, where he placed the parcel containing the gun beneath an oil tank.
After securing search warrants, officers went to the house and seized the parcel containing the gun and radio transmitter. In the trunk of Trayn-ham’s car, they also discovered and seized another gun which earlier had been lost or stolen from the mails.
Thereafter the Government deducted from Elmore’s compensation the value of twenty-three guns, not including the two which had been recovered from Trayn-ham, which had been lost or stolen from the mails while in the course of delivery to Roanoke addressees. Of those twenty-three guns, four had reached the parcel post annex, for one of the supervisors there had notified the Roanoke Police Department of the receipt of each of those four guns. The other nineteen guns apparently never reached the parcel post annex, as, indeed, the test gun containing the radio transmitter did not. The District Judge thus charged Elmore with the value of four guns affirmatively shown to have actually reached the parcel post annex in Roanoke, but concluded that the Government had failed to prove that the remaining nineteen guns had reached the Roanoke area. In this latter conclusion, we think that he was mistaken.
The regularity of the mails is such that proof of mailing is prima, facie proof of receipt by the addressee, but the permissible inferences become limited when a breakdown in the Postal Service is shown with respect to a particular class or classes of items. Then, the general deduction prevails that items within the indicated class, or classes, reached the carrier or the area in which the particular breakdown is shown to have occurred but were lost there if undelivered to the ultimate addressee. This was the explicit holding of Boerner v. United States, 2 Cir., 117 F.2d 387. See, also Pasadena Research Laboratories v. United States, 9 Cir., 169 F.2d 375.
The District Judge recognized that the proof here made out a prima facie case of receipt by Traynham. He declined to apply it against Elmore “because nowhere is bad faith charged against the Elmores.”
It is true that no one charged the Elmores with bad faith or wrongdoing. Their only fault was ineffective supervision of their employees, particularly Traynham, but the law makes a contract carrier responsible for losses due to the neglect of his agents and his employees. Though the Elmores, themselves, be subject to no moral censorship, they are as responsible for losses as a thieving employee of theirs who actually causes it. It simply was in irrelevance to observe that the Elmores were not charged with bad faith or affirmative wrongdoing.
The Government’s proof here was ample to show that each of the nineteen guns came into the possession of Elmore’s employees. Proof that unusual losses of guns were being sustained in the Roanoke area, not elsewhere in Virginia, coupled with the observed fact of Traynham’s theft of one gun and his possession of another stolen gun, in combination, was ample to make out a prima facie case that each of the guns reached Elmore, who had the exclusive contract of carriage of parcel post from the railroad station to the main post office and from the main post office to the parcel post annex.
The proof, of course, only made out a prima facie case, which should prevail only if unrebutted. Elmore, with Traynham’s assistance, attempted to rebut it. Trayham testified that he did not steal any one of the twenty-three guns. He denied that he had stolen the gun found in the trunk of his car, claiming that it had been given him by a friend, unfortunately, recently deceased. He was on the point of denying that he had stolen the test gun with the radio transmitter, when reminded that he had entered a plea of guilty to its theft.
The situation created a case for the factfinder. The prima facie case should prevail, unless Elmore’s attempt to rebut it through Traynham’s testimony was believed. We need not remand for further findings, however, because the District Judge plainly stated his disbelief of Traynham. He arrived at his conclusion, not by findings that some of the guns were lost or stolen while in the possession of others than Elmore, but simply by a failure to recognize that a prima facie case had been made out with respect to the nineteen guns, as well as with respect to the four which were affirmatively shown to have reached the parcel post annex in Roanoke, Virginia.
Under these circumstances, there is no unresolved factual issue and we may simply direct the entry of judgment for the United States.
Reversed.
. 39 U.S.C.A. § 6434; see, also, 39 C.F.R. 522.4(a).
. “VVe are not concerned with the four guns found by the District Judge to have been stolen by Traynham.
Question: What is the specific issue in the case within the general category of "due process"?
A. denial of fair hearing or notice - government employees (includes claims of terminated government workers)
B. denial of hearing or notice in non-employment context
C. taking clause (i.e., denial of due process under the "taking" clause of the 5th or 14th Amendments)
D. freedom of information act and other claims of rights of access (includes all cases involving dispute over requests for information even if it does not involve the freedom of information act)
E. other due process issues
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.
JESSOPH CO., Inc., v. BRIGGS & TURIVAS, Inc.
Circuit Court of Appeals, Second Circuit.
June 1, 1925.
No. 328.
1. Sales <s=359(l) — Prima facie case made by evidence in seller’s action for price.
Evidence of plaintiff in action for price of goods soid and delivered held to make a prima facie case.
2. Sales <§s=3354(2) — Plaintiff not bound to pay attention to or discern piea of payment in meaningless denial of information and: heiief.
Plaintiff in action for balance of price of goods sold and delivered, in wliich defendant denied all material allegations of the complaint, was not bound to pay attention to, much less discern an affirmative plea of payment in, the following meaningless denial in the answer of “any knowledge or information sufficient to form a belief that plaintiff * * * sold and delivered to defendant * * * merchandise for which plaintiff has been paid in full.”
In Error to the District Court of the United States for the Southern District of New York.
Action by the Jessoph Company, Inc., against Briggs & Turivas, Inc. Judgment on verdict directed for plaintiff:, and defendant brings error.
Affirmed.
Action at law — jurisdiction resting on diversity of citizenship — wherein plaintiff below (Briggs & Turivas) alleged that at defendant’s instance and request it had sold and delivered to it (Jessoph Company) 12,-923.365 tons of steel bars, etc., for which Jessoph had agreed to pay $299,822.06 by a date long past, but had paid no more than $287,471.20; wherefore plaintiff demanded judgment for the difference, with interest from the alleged agreed payment date. All the foregoing, except the payment of $287,-471.20, .Jessoph Company denied, and added a denial of “any knowledge or information sufficient to form a belief that plaintiff (resides as alleged in the complaint) and that heretofore plaintiff sold and delivered to the defendant divers goods, wares, and merchandise, for which plaintiff has been paid in full.”
On such pleading the ease went to trial; and plaintiff proved a written agreement by .plaintiff to sell defendant “approximately 12,391 gross tons” of steel shapes situated at sundry railway yards in Montreal, B. Q., to be delivered “on demand” of defendant, at $23.20 per “net ton of 2,000 pounds for all material as and where is” and “railroad weights at points of shipment to govern settlements”; also, that defendant agreed to give and did give plaintiff a commercial credit with a hank in Newark, N. J., for $287,-471.20, available by “draft accompanied by certified invoice” from Jessoph Company; further, that plaintiff did ship according to the railroad weights of the steel so contracted for 13,156 tons of 2,000 pounds each, or considerably inore than the amount alleged in the complaint, and that defendant had paid the amount pleaded, which was the face of the credit.
Computation shows that plaintiff sued, not for the whole excess of steel over that which $287,471.20 would pay for, but for a smaller amount. On these facts verdict was directed in favor of plaintiff for what it had sued for, and defendant took this writ.
Otto A. Samuels, of New York City (Jack Lewis Kraus, II, of New York City, of counsel), for plaintiff in error.
Leo Oppenheimer, of New York City (H. EL Nordlinger and Milton B. Kupfer, both of New York City, of counsel), for defendant in error.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
HOUGH, Circuit Judge
(after stating the facts as above). Two questions are here raised; the .first that plaintiff did not make put a prima facie case. We have above recited what we think was proven and no question of law would be elucidated by going into the matter further. It is held that plaintiff gave enough evidence to warrant a verdict, in the absence of any controverting proof.
The other question is whether the above-quoted statement of the answer, viz. the denial of any “knowledge or information sufficient to form a belief” that plaintiff «* • • ;heretofore sold and delivered to the defendant divers goods, wares, and merchandise, for which plaintiff has been paid in full” should be treated as an allegation that the purchaser (defendant below) had procured from plaintiff below an agreement that payment of the amount of the credit should be payment 'for all the steel shipped from Montreal, no matter how much there was of it. This was substantially the only defense that plaintiff in error had, and it attempted to show an oral modification of the written contract to the effect above stated.
It is quite true that the pleading as it stands is absurd. It is said that if plaintiff below did not intend to accept this as a plea of payment, it should have moved against the pleading and not permitted the ease to go to trial in such form. We perceive no obligation on a plaintiff to seek to amend mere absurdities in a defendant’s- answer. The pleading as it stood denied aE the material allegations of the complaint. There was an issue, and a plain one. In the light of what is now admitted, and was certainly known to this plaintiff in error, that issue was not weE chosen, to say the least; but, as it stood, we see no reason why plaintiff below should have paid any attention to such nonsense as the denial of information and belief we have quoted. Much less can plaintiff below be blamed for not discerning in this meaningless form of words an affirmative plea of payment.
Judgment affirmed, with costs.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_respond2_1_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
CONTINENTAL INSURANCE COMPANIES, Appellee, v. NORTHEASTERN PHARMACEUTICAL AND CHEMICAL COMPANY, INC., Milton Turkel, Edwin B. Michaels and John W. Lee, Appellees, State of Missouri, Intervenor-Appellant.
No. 85-1940.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 15, 1986.
Decided Jan. 22, 1987.
Rehearing En Banc Granted March 30,1987.
Shelley A. Woods, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Karen Florini, Washington, D.C. for amicus — U.S.
Gary R. Long, Kansas City, Mo., for Continental Ins. Co.
Thomas W. Brunner, Washington, D.C., for amicus American Ins. Association.
William D. Iverson, Washington, D.C., for amicus IBM.
Jerome T. Wolf, Carl H. Helmstetter, James T. Price, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus AT&T Technologies, Inc.
Before HEANEY and McMILLIAN, Circuit Judges, and MURPHY, District Judge.
Order published at 815 F.2d 51.
The Honorable DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation.
HEANEY, Circuit Judge.
This appeal raises the question of whether hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9657 (1982) (CERCLA) are recoverable under a liability policy that covers “property damage” that “occurs” during the life of the policy, where disposal and environmental contamination took place during the policy period but cleanup costs were incurred later. We reverse the district court’s order on Count I of Continental’s complaint, affirm its dismissal of the State of Missouri’s counterclaim, and hold that state and federal governments suffer “property damage” at the time hazardous wastes are improperly “released” into their environment and that cleanup costs are a recoverable measure of damages for this environmental property damage. We also affirm the district court’s dismissal without prejudice of Count II of Continental Insurance Company’s complaint relating to coverage for private individuals’ personal and property damage due to improper hazardous waste disposal.
I. FACTS.
From 1970 to 1972, the Northeastern Pharmaceutical and Chemical Company (NEPACCO) produced hexachlorophene at a chemical plant in Verona, Missouri. The process produced a variety of wastes, among which was dioxin, a highly toxic chemical. In July, 1971, NEPACCO made arrangements to dispose of at least eighty-five fifty-five-gallon drums of these wastes in a trench on a farm near Verona, Missouri (the “Denny farm” site). When the deteriorated drums were dumped in the trench in July, 1971, a “strong odor” shortly emerged, persisting for several months. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823, 828-30 (W.D. Mo.1984). Later in 1971 or 1972, NEPACCO hired Independent Petrochemical Corporation (IPC) which, in turn, hired Russell Bliss to dispose of more dioxin-contaminated wastes. In 1971, 1972, and 1973, Bliss allegedly spread thousands of gallons of these wastes on the premises of the Bubbling Springs Stables in Fenton, Missouri, and on the roads of Times Beach, Missouri. Later, in 1974, a Mr. Minker purchased twenty truckloads of contaminated dirt from the Bubbling Springs Ranch and used it as landfill on his property at West Rock Creek Road, Missouri (the “Minker/Stout/Romaine Creek” site).
During the two-year period from 1970 to 1972 that NEPACCO was in business, it was insured under a Comprehensive General Liability Policy (CGL), issued by Continental. Three somewhat different policies were in effect from August 5, 1970, to August 5, 1971; August 5, 1971, to August 5, 1972; and August 5, 1972, to November 5, 1972. Each policy requires Continental to:
pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies caused by an occurrence,[] and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.
All three provide that: “[tjhis insurance applies only to bodily injury or property damage which occurs during the policy period.”
In 1980, the EPA investigated the Denny farm site and found that the NEPACCO wastes in the trench and underlying soil contained “alarming[ly] high concentrations of dioxin.” Id. at 831. It cleaned up the site, and then sought to recover its costs through a lawsuit against NEPACCO and others. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823 (the “EPA ” suit). The district court found NEPACCO and the other defendants jointly and severally liable under CERCLA for the cost of the cleanup. A separate appeal in that action is now pending before another panel of this Court.
On March 7, 1983, a number of former residents of Times Beach and Imperial, Missouri, filed an action against NEPACCO and others which seeks recovery for personal injuries and property damage allegedly caused by the dumping of NEPACCO’s wastes at the Minker/Stout/Romaine Creek site and on the streets of Times Beach. Capstick v. Independent Petrochemical Corp., No. 832-0453 (Cir.Ct., City of St. Louis, Mo. filed Mar. 7, 1983) (the “Capstick ” suit).
To protect against potential liability arising out of its status as insurance carrier for NEPACCO during the time NEPACCO’s hazardous wastes were improperly disposed of, Continental filed this action against NEPACCO and its former officers and directors. Count I seeks a declaration that Continental is under no duty to defend or indemnify NEPACCO for liability arising out of the EPA suit. Count II seeks the same declaration with respect to the Capstick suit. On November 14, 1984, Continental moved for summary judgment. NEPACCO and the other defendants failed to enter an appearance or file an answer.
The State of Missouri was then granted leave to intervene to protect its interests arising out of claims that it had made against NEPACCO and the other defendants in a third hazardous-waste lawsuit filed in the United States District Court for the Eastern District of Missouri. Missouri v. Independent Petrochemical Corp., No. 83-3670 (E.D.Mo. filed Nov. 23, 1983) (the “IPC ” suit). The complaint in IPC alleges that NEPACCO, its officers, and others are liable under CERCLA for costs incurred by the state in excavating and removing dioxin-contaminated soil from the Mink-er/Stout/Romaine Creek site. The state filed an answer to Continental’s complaint and a counterclaim alleging that Continental is obligated to indemnify the state for the amount of any judgment imposed on NEPACCO in the underlying IPC lawsuit.
On June 25, 1985, the district court granted summary judgment to Continental on Count I of its complaint (no insurance coverage for the EPA claims), and against the state on its counterclaim (no coverage for the IPC claims). The court reasoned that the cleanup costs sought by the United States and the state in the EPA and IPC suits are not “property damage” as that term is defined in the CGL policies and that “no * * * damages were incurred by the government entities during the policies’ effective dates” because the policies were only in effect from 1970 to 1972, and the cleanup costs were incurred later. The court also granted Continental’s motion to dismiss without prejudice Count II of its complaint (the Capstick claims), stating that “more specific findings of bodily injury and property damage” were needed first. The State of Missouri appeals.
II. DISCUSSION.
A. EPA and IPC Claims.
The first issue is whether the district court erred in holding that cleanup costs under CERCLA are not “property damage” as defined in the CGL policies. Although the district court cited no case and gave no explanation for its holding, Continental and amicus AIA advance two arguments in support.
Continental argues that only the actual owners of the land on which hazardous wastes are improperly disposed of sustain “property damage,” and that any injury suffered by governmental entities from the improper disposal is merely an economic injury. We disagree.
The Supreme Court of the United States has held that state and federal governments suffer injury to their “quasi-sovereign” interests when pollutants are released into the soil, water, and air within their jurisdiction. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed.2d 1038, 1044 (1907) (state); cf. Illinois v. City of Milwaukee, 406 U.S. 91, 101-07, 92 S.Ct. 1385, 1391-94, 31 L.Ed.2d 712, 722-26 (1972) (federal). The question here is whether this injury to governmental “quasi-sovereign” interests constitutes “property damage” within the meaning of an insurance policy. Although the Supreme Court has not squarely confronted the issue, two thoughts expressed in cases decided by the Court lead us to reject Continental’s argument. First, it has implied that an injury to a government’s quasi-sovereign interest in natural resources is a form of property damage. Second, it has held that the government has power, in its quasi-sovereign capacity, to seek redress for the environmental property damage suffered by the actual owners of the land affected by pollution.
In Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, for example, the State of Georgia brought suit against certain Tennessee copper companies to enjoin the discharge of noxious gases over its territory. In holding that it had jurisdiction and that Georgia was entitled to an injunction, the Court stated:
The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make-weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.
206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed. at 1044.
The Court’s discussion of a governmental interest in “title” to all the soil, water, and air within its jurisdiction suggests that the government has a property interest in natural resources. A similar implication arises from Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where the Court held that Missouri was permitted to sue as parens patriae to enjoin the discharge of sewage from Chicago, Illinois, into the Illinois and Mississippi rivers: “impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river * * * would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 844, 45 L.Ed. at 512. The Court suggested that although a dispute between states over interstate waters may not involve “direct property rights” of a state, the injury to the state’s “quasi-sovereign” rights is akin to an injury to state property rights. Id. Furthermore, the Court stressed that in environmental damage suits, a state has the power to seek redress in court for the property damage caused to the general public. Id.; see also Maryland v. Louisiana, 451 U.S. 725, 766, 101 S.Ct. 2114, 2139, 68 L.Ed.2d 576, 608 (1981) (Rehnquist, J., dissenting on other grounds) (pointing out that when a state sues to advance its quasi-sovereign interests, it is not suing simply to protect the economic interests of its citizens). Similarly, in Toomer v. Witsell, 334 U.S. 385, 408, 68 S.Ct. 1156, 1168, 92 L.Ed. 1460 (1948), Mr. Justice Frankfurter, joined by Mr. Justice Jackson, concurring, stated:
A state may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the state may for the common good exercise all the authority that technical ownership ordinarily confers.
This conclusion is supported by statements in a wide array of cases and statutes that state and federal governments have property interests in wildlife, inter- and intrastate waters, and natural resources in general. Moreover, state and federal governments have “direct property interests” in public land holdings which may be damaged by environmental contamination.
In light of these extensive statements of governmental property interests in environmental resources, it does not seem unreasonable to assume that an insurance company, providing liability coverage for a chemical producer, would contemplate environmental damage as a form of covered “property damage for which governments may seek recovery.” See Lansco, Inc. v. Department of Envtl. Protection, 138 N.J. Super. 275, 350 A.2d 520, 524-25 (1975), aff'd, 145 N.J.Super. 433, 368 A.2d 363 (1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). The policies’ definition of “property damage” as damage to “tangible property” or “physical injury” seems to contemplate damage to tangible property such as land, trees, air, and water. Supportive of this is the inclusion in the latter two of the three policies at issue of clauses generally excluding environmental damage from coverage for property damage. See Port of Portland v. Water Quality Ins. Syndicate, 549 F.Supp. 233, 235 (D.Ore.1982) (The pollution exclusion clause “itself states that ‘property damage’ may result from the discharge of pollutants.”).
Finally, all of the cases which have squarely considered Continental’s argument have rejected it. In Mraz v. American Universal Ins. Co., 616 F.Supp. 1173 (D.Md.1985), for example, the court rejected as “untenable” the insuror’s claim that state and federal governments do not sustain “property damage” for insurance policy purposes when hazardous wastes are improperly disposed of and ultimately cleaned up by the government. A similar conclusion was reached in Lansco, 350 A.2d at 524-25, and Kutsher’s Country Club Corp. v. Lincoln Ins. Co., 119 Misc.2d 889, 465 N.Y.S.2d 136, 139 (N.Y.Sup.Ct.1983).
In sum, we agree with the position taken in Mraz, Lansco, and Kutsher’s that the improper release of toxic wastes may cause “property damage” not only to the actual owner of the land, water, or air, but also to state and federal governments because of their “interest independent of and behind the titles of its citizens in all the earth and air within [their] domain.” Tennessee Copper Co., 206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed.2d at 1044.
Amicus AIA assumes, at least for purposes of argument, that environmental contamination may cause “property damage” for which state and federal governments may seek relief. However, it argues that while the governments might be able to recover for the diminution in value of environmental resources, cleanup costs themselves are not recoverable. It bases this argument on the language of section 107 of CERCLA which provides:
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.
42 U.S.C. § 9607(a)(4).
A close reading of this section fails to support AIA’s argument that only an action under the last subsection, section 9607(a)(4)(C), is an action for “property-damage.” It seems clear to us that, although subsection (C) directly provides for recovery for damage to natural resources, subsections (A) and (B) are also measures of the damages which governmental entities may recoup for hazardous waste damage to natural resources. This conclusion is supported by all of the on-point cases cited by the parties or revealed by our independent research. See, e.g., Askew v. American Waterways Operators, 411 U.S. 325, 331, 93 S.Ct. 1590, 1595, 36 L.Ed.2d 280, 286 (1973) (In discussing the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. §§ 1161 et seq. (1972), and a similar Florida Act, the Court stated, “While the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage.”); Riehl v. Travelers Ins. Co., 22 Env’t Rep.Cas. (BNA) 1544, 1546 (W.D.Pa. Aug. 7, 1984), rev’d on other grounds, 772 F.2d 19 (3d Cir.1985) (Measure of damages to ground water and streams caused by seepage of wastes from insured’s landfill “is not precisely calculable but includes abatement costs relative to preventing further pollution.”); Port of Portland, 549 F.Supp. at 235 (Cost of cleaning up oil spill is recoverable “property damage” under CGL policy.); Chem. Application Co. v. Home Indem. Co., 425 F.Supp. 777, 778 (D.Mass.1977) (Cleanup and removal expenses incurred by insured measure the “damages” for which indemnification is available.); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 72 N.C.App. 80, 323 S.E.2d 726, 735 (N.C.App.1984), rev’d on other grounds, 315 N.C. 688, 340 S.E.2d 374 (1986) (Cleanup costs are “essentially compensatory damages for injury to common property,” the ground water of the State of North Carolina.); Kutsher’s Country Club Corp., 465 N.Y.S.2d at 139 (“The cost of cleanup * * * is clearly reflective of the state’s power to establish damages with respect to legislation designed to preserve the sovereign state’s interest in the preservation of natural resources.”); Lansco, Inc. v. Department of Envtl. Protection, 350 A.2d at 525 (Measure of damages for pollution discharge in river is “the cost of eliminating the harmful substance from the waters of the state.”). But cf. Atlantic City Mun. Util. Auth., No. A-1320-94TF (N.J.Super.Ct.App.Div.1985); Linda Walls, No. 2-83-418 (E.D.Tenn. Oct. 11, 1983).
Finally, the language of the CGL policies at issue supports the view that cleanup costs are a measure of recoverable damages for injury to environmental resources. The language of the policies specifically require Continental to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of property damage.” This language suggests that once there is property damage — here, environmental contamination — then the damages that flow from that property damage— here, cleanup costs — are recoverable.
In sum, the cases, the CGL policy language, the common meaning of “property damage,” and section 107 of CERCLA.all support the governments’ argument that cleanup costs under CERCLA are compensatory damages for “property damage” within the meaning of the CGL policies. Accordingly, we adopt this view.
The remaining issue is whether the district court erred in holding that the governments did not suffer an “occurrence” of property damage during the policy period because, although the improper waste disposal occurred during the policy period, the cleanup costs were not incurred until long after the policies expired. We hold that it did and adopt the majority view that environmental damage occurs at the moment that hazardous wastes are improperly released into the environment and that a liability policy in effect at the time this damage is caused provides coverage for the subsequently incurred costs of cleaning up the wastes. In Mraz, 616 F.Supp. at 1179, for example, the court rejected the same argument made by the insurer here and held that further fact findings were called for on an allegation that “environmental damage began to take place immediately in 1969 upon dumping at the Leslie site creating the potential for liability within the scope of the 1969 policy.” A similar conclusion has been reached in numerous other cases. See, e.g. Payne, 625 F.Supp. at 1103 (Implicitly finding that improper disposal of hazardous wastes during policy period is an “occurrence” of “property damage” at the time of release into the environment.); Mercury Refining Co. v. Hartford Fire Ins. Co., No. 84-CU-495, (N.D.N.Y. July 19, 1985) (same); Riehl, 22 Envtl.Rep.Cas. (BNA) at 1546, rev’d and remanded on other grounds for further findings, 772 F.2d 19 (3d Cir.1985) (same); Buckeye Union Ins. Co., 477 N.E.2d at 1233 (Insurer during the time period when hazardous wastes were “released” into surrounding soil and groundwater has duty to defend CERCLA cleanup suit under CGL policy.); CPS Chem. Co., 489 A.2d at 1269 (“Time of discovery of the accident does not determine when [damage] took place. The complaint alleges damages commencing with the date of dumpings.”).
Quite similar to this line of decisions are cases involving insurance coverage for “progressive diseases” where exposure to a harmful substance occurred during the policy period but the disease or illness developed later after the policy expired. The majority of federal cases on this issue have found coverage by adopting the “exposure,” or the “continuous exposure,” theory of when injury occurs. These decisions rest on the view that exposure to the dangerous substance at issue during the policy period caused immediate, albeit undetectable, physical harm which ultimately led to disease or physical impairment after the expiration of the policy period. For example, in Forty-Eight Insulations, 633 F.2d at 1223, the Court, in finding coverage for a progressive disease which manifested itself after the policy period, stated, “We see nothing in the policy which requires that the underlying cause of action accrue within the policy period. There exists a clear distinction between when bodily injury occurs and when the bodily injury that has occurred becomes compensable.” Accord Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 878 (1981).
These cases are distinguishable from cases where a negligent act was committed during the policy period but an accident or injury did not occur until after the policy expired. For example, if one negligently fails to shovel snow off his sidewalk during the policy period, there is no compensable accident until and if someone slips and injures himself during the policy period. This distinction was discussed in Mueller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J.Super. 564, 232 A.2d 168, 175 (N.J.Super.Ct.App.Div.1967), a case involving insurance coverage for a claim of malicious prosecution, where the court wrote:
The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. In a claim based on malicious prosecution the damage begins to flow from the very commencement of the tortious conduct — the making of the criminal complaint. The wrong and damage are practically contemporaneous * * *.
It seems to us that in the case of improper hazardous waste disposal, the wrong and the resulting damage may also be practically contemporaneous.
The decision in Kissel v. Aetna Cas. & Sur. Co., 380 S.W.2d 497 (Mo.Ct.App.1964), is particularly relevant on the crucial question of how the Missouri courts would likely rule on the question of when property damage occurs for purposes of insurance coverage. In Kissel, a building contractor hired to build a school employed a subcontractor to dig the foundation and to do landscaping work. During the excavation work in 1952, a series of pressure cracks developed in the ground around the school. The cracks were filled in with dirt and the school construction and landscaping were completed in 1953. The contractor carried a comprehensive general liability policy which covered property damage done by itself and its subcontractors in the course of their construction work. The CGL policy expired in late 1952. In 1957, the cracks reappeared and spread to several pieces of property adjoining the school. Five owners of these pieces of property brought suit, and the construction company instituted suit seeking a declaration that the CGL policy in effect in 1952 covered the damage which occurred in 1957. The insurance carrier argued “that the accident in question occurred in 1957, and not during the policy period, which was November 1951 to November 1952. Under those circumstances, * * * it cannot be held responsible for the damages shown in evidence.” 380 S.W.2d at 507. The court rejected this contention, noting that there was not merely an act of negligent excavation during the policy period, but that this negligence also caused immediate property damage during the policy period which, by 1957, after the policy period, spread to adjoining property. “We agree * * * that the accident mentioned in the policy may be a process and the evidence in the instant case is sufficient to show that the process started during the term of the policy and progressed until the filing of the lawsuits. We rule this point against defendant.” Id. at 509. We find that the Kissel case clearly indicates that Missouri would follow the majority view of the courts which have ruled that “property damage,” within the meaning of a CGL policy, generally occurs at the time hazardous wastes are improperly disposed of and that the insurer at that time may be held liable for cleanup costs incurred after the policy expired.
Applying these principles, it is clear that the “property damage” proved in the EPA case, 579 F.Supp. at 830, first occurred in July, 1971, during the period of time when the first insurance policy issued by Continental to NEPACCO was in effect. EPA, 579 F.Supp. at 830 (noting that NEPACCO’s agents dumped leaking, deteriorated barrels into the trench at the Denny Farm site and that, upon dumping of the wastes, a “strong odor emitted” and “continued for several months, maybe years.”). Under Kissel, it is also clear that Continental may additionally be liable for the continuing spread of the “property damage” at and around the Denny farm site, which first began in July, 1971. Kissel, 380 S.W.2d at 509. Accordingly, we reverse the district court’s order with respect to Count I of Continental’s complaint and remand for resolution of the remaining issues which must be resolved before it can be determined whether Continental must indemnify NEPACCO for the damages awarded in the EPA suit.
It also follows, however, from our holding on the question of the time of the relevant “property damage” “occurrence,” that Continental is not liable to defend or indemnify NEPACCO for liability arising from the IPC suit. The complaint in IPC alleges that in 1971 or 1972, Russell Bliss, pursuant to an agreement with IPC and NEPACCO, transported dioxin-contaminated waste oil from the NEPACCO plant in Verona, Missouri, and spread the contaminated oil on the premises of the Bubbling Springs Stable in Fenton, Missouri. This would be the relevant time of the “property damage” “occurrence” for purposes of cleaning up the Bubbling Springs Stable. However, the IPC complaint does not seek to recover costs for cleaning up the Bubbling Springs Ranch, nor does it seek recovery for the diminution in the value of resources at or around the Bubbling Springs Ranch and its watershed. Instead, the state seeks to recover the costs of cleaning up the Minker/Stout/Romaine Creek site which was contaminated when twenty loads of contaminated fill dirt from the Bubbling Springs Ranch were deposited there in 1974, after the CGL policies had expired. Because the damage at the Minker/Stout/Romaine Creek site first occurred after the last CGL policy’s effective date, we find that it would be beyond the reach of the reasoning in Kissel to hold Continental liable for this damage which began after the policy lapsed. Accordingly, we affirm the district court’s finding on the state’s counterclaim that Continental has no duty to defend or indemnify NEPACCO for potential liability in the pending IPC suit.
B. Capstick Claims.
The State of Missouri contends that the district court erred in dismissing, without prejudice, Count II of Continental’s complaint which seeks a declaration of no duty to defend or indemnify NEPACCO in the Capstick lawsuit. The Capstick suit differs in several respects from the EPA and IPC suits. The latter involve governmental cleanup cost recoveries under CERCLA; the former involves claims by private individuals for personal and property damage arising out of improper disposal of NEPACCO’s hazardous wastes. We agree with the trial court that resolution of the insurance coverage issues in Capstick requires additional fact finding and analysis, see Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., Civ. No. 83-3347, (D.D.C., filed Feb. 4, 1986), which may be pursued most effectively in a different proceeding. Accordingly, the district court’s decision granting Continental’s motion to voluntarily dismiss Count II without prejudice is affirmed.
. Times Beach was a town of approximately 2,200 people located twenty-five miles southwest of St. Louis. Soil samples taken there by the EPA in the early 1980’s revealed soil dioxin levels in excess of one hundred times the Center for Disease Control’s recommended maximum soil dioxin level for residential areas. In February, 1983, the EPA announced that the government would purchase the entire town of Times Beach using $33.7 million from the federal Superfund. The State of Missouri contributed an additional $3.3 million to the buy-out.
. The drafting history and background of the standard-form CGL policy is discussed in American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1500-03 (S.D.N.Y.1983), aff'd as modified, 748 F.2d 760 (2d Cir.1984).
. The latter two policies, covering the period August 5, 1971, to November 17, 1972, contain the following "pollution and contamination” exclusion clause:
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.
The United States Court of Appeals for the First Circuit has held that coverage for damages caused by hazardous wastes improperly disposed of by the plaintiff in the regular course of its business is excluded by the same "pollution exclusion” clause. Great Lakes Container Corp. v. National Union Fire Ins. Co., 121 F.2d 30 (1st Cir.1984); see also Travelers Indemn. Co. v. Dingwell, 414 A.2d 220 (Me.1980). Other courts have reached the opposite conclusion where the hazardous waste discharge was sudden or accidental or the wastes were negligently disposed of by a third-party contractor or were disposed of in full compliance with all applicable rules and regulations, or the wastes were generated other than in the regular course of the insured’s business. See, e.g., Payne v. United States Fid. and Guar. Co., 625 F.Supp. 1189 (S.D.Fla.1985); Technicon Electronics Corp. v. American Home Assurance Co., No. 08811/85 (N.Y.Sup.Ct. Feb. 13, 1986); Buckeye Union Ins. Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App.3d 127, 477 N.E.2d 1227 (Ohio Ct.App.1984); Niagara County v. Utica Mutual Ins. Co., 80 A.D.2d 415, 439 N.Y.S.2d 538 (N.Y.App.Div.), mot. for lv. to app. dism., 54 N.Y.2d 608, 427 N.E.2d 1191, 443 N.Y.S.2d 1030 (1981); Lansco, Inc. v. Department of Envtl. Protection, 138 N.J.Super. 275, 350 A.2d 520 (N.J.Super.Ct.Ch.Div.1975), aff’d, 145 N.J.Super. 433, 368 A.2d 363 (N.J.Super.Ct.App.Div.1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). Whether the "pollution exclusion” clause excludes coverage in this case is not at issue on appeal because the district court found a lack of coverage on other grounds.
. All three policies define "property damage" as follows:
(1) Physical injury or destruction of tangible property which occurs during the policy period, including the loss of use thereof at anytime resulting therefrom,
(2) Loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period * * *.
. All three policies define "occurrence” as “an accident, including continuous or repeated exposure to conditions, injury or property damage neither expected nor intended from the standpoint of the insured." Several courts have held that the discharge of hazardous wastes is an "occurrence” within this type of provision where the discharge or the extent of the damage was not expected or intended. See, e.g., Mraz v. American Universal Ins. Co., 616 F.Supp. 1173, 1177-78 (D.Md.1985),
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_appbus
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William Creighton VAUGHN, Appellant, v. UNITED STATES of America, Appellee.
No. 19125.
United States Court of Appeals Eighth Circuit.
Dec. 4, 1968.
Rehearing Denied Dec. 30, 1968.
Bright, Circuit Judge, dissented.
Robert C. Oberbillig, Waterloo, Iowa, for appellant.
Thomas F. Dowd, Asst. U. S. Atty., Omaha, Neb., for appellee; Theodore L. Richling, U. S. Atty., on the brief.
Before MATTHES, GIBSON and BRIGHT, Circuit Judges.
MATTHES, Circuit Judge.
The appellant was found guilty by a jury of wilfully and knowingly failing and neglecting to comply with an order of his local draft board (Omaha, Nebraska) to report for and submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462. He has appealed from the judgment of conviction.
The basic question for decision is whether appellant’s local draft board in Omaha, Nebraska, was justified in failing to reopen his I-A classification and considering his claim that he was a conscientious objector. Appellant submits that the failure to reopen has no “basis in fact” and deprived him of basic procedural fairness. This issue must be determined from the information and evidence furnished by appellant in the administrative proceeding. Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947):
The record presents a unique factual situation. We review the pertinent events in chronological order.
November 20, 1963. Questionnaire was mailed to appellant. He did not sign “Series VIII — CONSCIENTIOUS OBJECTOR” which reads:
“By reason of religious training and belief I am conscientiously opposed to participation in war in any form and hereby request that the local board furnish me a Special Form for Conscientious Objector (SSS Form No. 150).”
December 12, 1963. He was classified II-S (student deferment) until June 1, 1964.
December 18, 1964. Classified I-A and duly notified of such classification.
January 18, 1965. He was mailed an order to report for physical examination on February 15, 1965.
February 11. Local board received a letter from appellant stating for the first time that he was a conscientious objector. Because this letter is vital to the question of whether the local board acted arbitrarily in failing to reopen appellant’s classification and grant him a personal appearance we reproduce the letter in full.
“William C. Vaughn
5327 So. Cornell Ave.
Apt. 217
Chicago, 111.
9 Feb. 1964 [sic]
Douglas Co. Local Board No. 28 Selective Service System 2409 Federal Building 215 No. 17.th St.
Omaha, Nebr.
Dear Sirs:
This is to inform you I cannot afford to make the trip from my home here to Omaha. Therefore I will be unable to be at my physical examination as scheduled. The hour of reporting was to have been at 7:00 a. m., 15 Feb., 1965.
Furthermore, I request a change in classification from my present I-A to that of a conscientious objector. For me, participation in the armed services is unethical. Here are a few of my reasons.
First, I believe war is outmoded. As circumstances exist today, war means complete annihilation. There is no possibility of either party gaining in an armed conflict today. Yet, almost everyone seems to feel war is a distinct possibility today, i. e., they still think of solutions to conflicts in terms of war. War is no longer a possibility, for if there is a war we will all be dead. The public must be educated to this fact and this is a duty far above the supposed duty to serve in the armed services.
Second, killing, I believe, is immoral whenever that is our intention. Therefore to serve as part of a war effort is against my personal ethics, as is capital punishment. As far as self-defense and a defense of nation is concerned, passive resistance is much more effective as well as being better morally.
My third reason has been alluded to in the previous sentence. That from the point of view of expediency passive resistance is much more effective. This is the method used with such great success by men such as Ghandi in the past and Martin Luther King and Mario Savio today. Moral force is much stronger than physical force.
Gentlemen, I am as interested as anyone in preserving freedom and human rights and in defending our country. But I favor a different type of defense. One of the freedoms I am interested in preserving is the freedom of conscience. Therefore I ask you to allow me my freedom to follow my ethical principles. Incidentally, my principles seem to be the same as Christian principles, for Christ himself said “He who takes up the sword shall perish by the sword,” and “turn thou the other cheek.” When will these principles become meaningful to all?
If you intend to preserve the matter further, I request a change from the jurisdiction of the Omaha board to one in Chicago where I live. Since I work, I cannot afford to go to Omaha to iron this out and lose job time and money spent on transportation. Thank you.
Sincerely yours
/s/ William C. Vaughn”
February 12. The local board informed appellant that he could undergo his physical examination in Chicago on March 26. He was further informed that he was required to complete enclosed SSS Form 150 and return it to the board. On the top of Form 150 was this instruction:
“This form must be returned on or. before February 23, 1965, ten days after mailing or issue.”
It was also stated on the face of the form:
“Failure by the registrant to file this special form on or before the date indicated above may be regarded as a waiver by the registrant of his claim as a conscientious objector; Provided, that the local board in its discretion, and for good cause shown by the registrant, may grant a reasonable extension of time for filing this special form.”
March 26. Appellant was physically examined and found acceptable.
April 6. The local board mailed finding of his physical fitness to appellant.
April 7. Board mailed order to report for induction on May 24.
May 24. Appellant informed the board by telephone that he had not reported for induction as instructed; that he had not returned SSS Form 150 because he could not answer the first two questions pertaining to his belief in a Supreme Being. He stated that under existing law he was not a conscientious objector. The clerk of the board requested him to come to the local office the next day.
May 25. Appellant appeared at the local board’s office, filed Form 150, but failed to answer questions (A) and (B) Series I. Under Series II — RELIGIOUS TRAINING AND BELIEF, the following questions appeared:
1. “Do you believe in a Supreme Being?” Applicant answered this, “no, see accompanying sheet.”
2. “Describe the nature of your belief which is the basis of your claim madq in Series I above, and state whether or not your belief in a Supreme Being involves duties which to you are superior to those arising from any human relation.” Appellant’s response to this question was “see accompanying sheet.”
June 2. The local board submitted appellant’s file to the Nebraska State Board Headquarters for determination.
June 8. At the suggestion of the local board appellant appealed to the Nebraska Appeal Board.
October 30. In accordance with prescribed procedures a hearing was conducted by a representative of the Department of Justice. Appellant was present and participated in this hearing.
December 27. Department of Justice recommended against reclassification.
February 25, 1966. The appeal board unanimously voted to sustain the I-A classification.
March 18. Appellant was ordered to report for induction on April 11. He failed to comply with this order. This prosecution ensued.
We approach the question here, mindful of the admonition of the Supreme Court “that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations. Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132.” Witmer v. United States, 348 U.S. 375, 380-381, 75 S.Ct. 392, 398, 99 L.Ed. 428 (1955).
Our scope of review is a narrow one. Witmer, supra at 380, 75 S.Ct. 392. We are permitted to overturn the classification “only if it has ‘no basis in fact,’ Estep v. United States, 1946, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567.” Witmer, supra at 381, 75 S.Ct. at 395; Lockhart v. United States, (9th Cir., October 23, 1968); United States v. Spiro, 384 F.2d 159, 161 (3rd Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1028, 19 L.Ed.2d 1151 (1968); United States v. Sturgis, 342 F.2d 328, 331 (3rd Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 164, 15 L.Ed.2d 120 (1965); Keefer v. United States, 313 F.2d 773 (9th Cir. 1963), or if we find that the local board’s action had the effect of denying appellant basic procedural fairness.
The regulations provide a comprehensive plan for classification and reopening and consideration anew of the classification.
Under 32 C.F.R. § 1624.1, every registrant after his classification has been determined by the local board shall have an opportunity to appear in person before the board “if he files a written request therefor within 30 days after the local board has mailed a Notice of Classification to him. Such 30 day period may not be extended.” Concededly, appellant at no time complied with this regulation.
Sections 1625.2 through 1625.14 relate to reopening of the registrant’s classification. Section 1625.2 provides the local board may reopen and consider anew the classification upon the written request of the registrant, if such request is accompanied by written information presenting facts, which if true, would justify a change in the classification. According to § 1625.11, when the local board reopens, it should consider the new information and shall again classify the registrant as if he had never been classified before. Section 1625.13 provides “each such classification shall be followed by the same right of appearance before the local board and the same right of appeal as in the case of an original classification.”
The parties agree that the local board did not reopen appellant’s I-A classification. Neither was he given the opportunity to appear before that board. Thus, the question for decision is focused upon the local board’s action following receipt of appellant’s February 9th letter, above set forth. More precisely, did the information there submitted present facts which, if true, required the local board to reopen and consider anew the classification?
The courts have held that the language of § 1625.2 is not unqualifiedly permissive arid that the local board cannot act with complete discretion and arbitrariness. If the evidence submitted is sufficient to establish a prima facie case of the registrant’s claim, then the board must reopen and determine whether registrant is entitled to the requested classification. Stain v. United States, 235 F.2d 339 (9th Cir. 1956); United States v. Ransom, 223 F.2d 15 (7th Cir. 1955); United States v. Vincelli, 215 F.2d 210 (2nd Cir. 1954). However, a registrant is not entitled to have his classification reopened and reconsidered upon a mere naked request. He is required to submit written evidence of objective facts in support of his claim of exemption. United States v. Mohammed, 288 F.2d 236 (7th Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 37, 7 L.Ed.2d 26 (1961); United States v. Ransom, supra.
Although the Government force-ably argues that appellant’s I-A classification has a “basis in fact,” it also contends that appellant, having refused to report for induction as ordered, failed to exhaust his administrative remedies and is not entitled to judicial review of his classification. It is said that appellant did not bring himself to the “brink of induction” and is therefore without standing to assert the invalidity of his classification. The contention is not without merit. See Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944); Daniels v. United States, 372 F.2d 407 (9th Cir. 1967); Moore v. United States, 302 F.2d 929 (9th Cir. 1962); Van Bibber v. United States, 151 F.2d 444 (8th Cir. 1945).
“The failure to exhaust administrative appellate remedies is not always a bar to asserting as a defense to criminal prosecution, for refusal to submit to induction, that there was no basis in fact for the denial of a claimed conscientious objector classification.
******
“Generally speaking, the rule requiring the exhaustion of administrative remedies is a rule of convenience fashioned by the courts to permit administrative agencies to correct their own errors. Also, by requiring a party aggrieved by an administrative decision to pursue all available administrative avenues open to him before seeking judicial relief, the courts are assured that many cases that would otherwise be litigated never actually reach the courts.
“There is nothing in the Selective Service laws or regulations that precludes a defendant indicted for a criminal violation of the Selective Service law from attacking the jurisdiction of the Draft Board unless he has first exhausted all administrative remedies. The rule of exhaustion is a court-made rule.” Lockhart, supra.
We regard this as an appropriate case for relaxing the rule.
The Government also asserts that appellant waived his claim for conscientious objector status. It argues that 32 C.F.R. § 1621.11 mandates that a registrant who claims to be a conscientious objector must substantiate his claim on SSS Form 150. Another regulation, 32 C.F.R. § 1625.2, noted above, provides, however, that the local board may reopen and consider anew the classification of a registrant “upon the written request of the registrant * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified * * Certainly the regulations were promulgated for a salutary purpose. Undoubtedly compliance with § 1621.11 is conducive to efficient processing of a claim for exemption. We believe, however, that classification in accordance with the law should not rest upon technical considerations. Substance, not form, is the controlling factor. We therefore hold that appellant’s letter of February 9th was sufficient in form to satisfy the requirements of the regulations.
We revert then to consideration of the substance of the letter. Did the information submitted present facts which deprived the local board of the discretionary authority vested in it by 32 C.F.R. § 1625.2? Stated differently, did the letter make a prima facie showing for conscientious objector classification? If so, the local board should have reopened his classification unless it had a basis in fact for failing to do so. United States v. Ransom, supra.
Under 50 U.S.C. App. § 456(j), prior to the 1967 amendment, one who claimed to be a conscientious objector was required to show:
“by reason of religious training and belief [he] is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human "relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.”
In May, 1965, the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, defined “Supreme Being” as a given belief that is sincere and meaningful, which belief “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.” Id. at 166, 85 S.Ct. at 854.
“We have concluded that Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological or philosophical views.” (Emphasis added.) Id. at 165, 85 S.Ct. at 854.
The Court further explained in Seeger:
“We noted earlier, the statutory definition excepts those registrants whose beliefs are based on a ‘merely personal moral code.’ The records in these cases, however, show that at no time did any one of the applicants suggest that his objection was based on a ‘merely personal moral code.’ Indeed at the outset each of them claimed in his application that his objection was based on a religious belief.” (Emphasis added.) Id. at 185-186, 85 S.Ct. at 864.
The only shred of evidence linking appellant’s claim as a conscientious objector to a religious belief is found in the sixth paragraph of the letter wherein he made reference to Christian principles and purported to quote from the Bible. We have with deliberation studied this statement separate and apart from the letter as a whole, but are unable to derive any meaningful significance therefrom. It will be observed that appellant did not vow allegiance to “Christian principles.” The extent of his profession of faith was “[ijncidentally my principles seem to be the same as Christian principles, * * (Emphasis added.) The biblical quotations, set forth abstractly as they are, bear little, if any, relevance to the asserted claim.
Evaluation of the full text of the letter leaves us with the firm conviction that there was a basis in fact for the board’s action. The communication convincingly demonstrates that appellant’s claim was premised solely on a moral and philosophical code. He declared in unequivocal language:. (1) Participation in the Armed Forces is unethical; (2) War is outmoded; (3) Killing is immoral; (4) Passive resistance is much more effective; (5) Moral force is much stronger than physical force.
We do not believe the reasons enunciated by appellant, considered severally or together, fall within the ambit of the Supreme Court’s teachings in See-ger. We cannot escape the conclusion that the letter in context was insufficient to make a preliminary showing that appellant was a conscientious objector. It simply failed to furnish sufficient information to enable the board to determine the source of appellant’s views.
As the Seeger Court observed:
“The section [50 U.S.C. App. 456 (j) ] excludes those persons who, disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it.” 380 U.S. at 173, 85 S.Ct. at 858.
In short, appellant’s request on its face failed to meet the statutory standard and reopening was not required. See Welsh v. United States, 404 F.2d 1078 (9th Cir., September 23, 1968).
We are mindful that the crucial issue, i.e., whether the local board should be faulted for not reopening, must be resolved mainly in light of the evidence submitted to the board in the February 9th letter. The subsequent events, however, are entitled to consideration. This is so because an appeal involves a. hearing de novo, Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); DeRemer v. United States, 340 F.2d 712 (8th Cir. 1965); Davis v. United States, 203 F.2d 853 (8th Cir. 1953), and supplementary material may be submitted to the appeal board as was the case here. Tyrrell v. United States, 200 F.2d 8 (9th Cir. 1952), cert. denied, 345 U.S. 910, 73 S.Ct. 646, 97 L.Ed. 1346 (1953). In our view the post-February 9th events and the exhaustive investigation conducted in connection with the review by the appeal board serve to reinforce our conclusion that the local board did not act arbitrarily.
As required by Section 6(j) of the Universal Military Training and Selective Service Act of 1951 (50 U.S.C. App. § 456(j), as amended), an inquiry was made by the Department of Justice. During the course of this inquiry appellant was given an opportunity to be heard. He appeared before the hearing officer on October 30, 1965, accompanied by his father. He stated at length the principles upon which he based his claim for exemption as a conscientious objec-tor. The Department of Justice concluded that appellant had failed to sustain his burden- of proving his conscientious objector claim and recommended to the board that the claim be denied.
Thus, in capsule form, we have a case involving an intelligent and knowledgeable young man who from the inception of the controversy manifested a full understanding of the requirements for qualification as a conscientious objector. He failed at every stage of the proceedings to furnish evidence sufficient to require the local board to reopen or the appeal board to order him reclassified. He was content to rely upon moral and philosophical considerations to support his claim. We are convinced appellant has not been denied basic procedural fairness and that there was ample basis in fact for the local board’s I-A classification and its failure to reopen.
Appellant also argues that his conviction should be reversed because: (1) The Government failed to prove criminal intent; (2) The trial court erred when it denied appellant’s motion for discovery of information from the files and records of the Department of Justice and the Selective Service System; (3) The trial court should have acquitted appellant because the Selective Service Act is unconstitutional. We have considered these contentions and find them lacking in merit.
We affirm.
. Unless otherwise indicated all subsequent events occurred in 1965.
. Question (A) reads:
“I am, by reason of my religious belief, conscientiously opposed to participation in war in any form. I, therefore, claim exemption from combatant training and service in the Armed Forces.”
Question (B) reads:
“I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training and service in the Armed Forces. I, therefore, claim exemption from both combatant and noncombatant training in the Armed Forces.”
. In the sheet accompanying SSS Form 150 appellant, referring to questions under Series I, stated:
“I am unable to answer this question as it stands. Neither of the choices available describes my position. I am conscientiously opposed to participation in either combatant or noncombatant training in service in the Armed Forces and I do claim exemption from both combatant and noncombatant training in service in the Armed Forces. However, the basis for my objections and my claim for exemption has nothing to do with any ‘religious training or belief.’ ”
Appellant’s remarks in regard to questions 1 and 2 under Series II are as follows:
“1. Whether I believe in a supreme being is irrelevant since my ethical and moral positions would remain the same whether I believe in a supreme being or not. To answer the question, however, I have no formulated belief in any kind of a supreme being.
2. In general, I hold that the question of the existence of a supreme being is irrelevant for all of my moral and ethical positions. My morality is based on reason alone, and a belief in a Supreme Being would involve no duties superior to those arising from any human relation, even if I were to hold such a belief.”
. It has been held that a registrant claiming denial of a procedural right has the burden of proving he was prejudiced. United States v. Spiro, supra; United States v. Jones, 384 F.2d 781 (7th Cir. 1967); United States v. Sturgis, supra 342 F.2d at 331; Bradshaw v. United States, 242 F.2d 180 (10th Cir. 1957); Rowton v. United States, 229 F.2d 421 (6th Cir.), cert. denied, 351 U.S. 930, 76 S.Ct. 788, 100 L.Ed. 1460 (1956). But see United States v. Freeman, 388 F.2d 246, 250 (7th Cir. 1967); Steele v. United States, 240 F.2d 142 (1st Cir. 1956). Since we find no denial of a basic procedural fairness we refrain from further discussion of the burden of proof issue.
. This section was amended by the Military Selective Service Act of 1967 by omitting the “Supreme Being” clause.
. The Military Selective Service Act of 1967 amended section 6(j) by eliminating the requirement for a referral of conscientious objector cases to the Department of Justice for hearing and advisory recommendation.
. Appellant testified before the hearing officer “that he is an agnostic and does not know whether or not there is a Supreme Being, but that the point is of no significance as the mere fact that one is a human being dictates the command not to take human life; that he feels that every human holds an obligation to every other human being to refrain from taking human life.” He stated he “could not point to any particular individual or group of individuals or documents or books which had caused him to come to these conclusions and that his reasons are the result of his own thinking on current events; * *
. Compare Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), involving the question of whether an applicant who was denied admission to the New York State Bar was accorded due process by the admission procedures. The Supreme Court held that due process is satisfied when such an applicant is given a hearing either at the local committee stage or at the appellate level.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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sc_lcdispositiondirection
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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 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
BURLINGTON NORTHERN INC. et al. v. UNITED STATES et al.
No. 81-1008.
Argued November 3, 1982
Decided December 13, 1982
Burger, C. J., delivered the opinion for a unanimous Court.
R. Eden Martin argued the cause for petitioners. With him on the briefs were Howard J. Trienens and Thormund A. Miller.
Elliott Schulder argued the cause for the federal respondents. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Shapiro, John Broadley, Kathleen M. Dollar, Robert S. Burk, and Timm L. Abendroth. William L. Slover argued the cause for respondents City of San Antonio et al. With him on the brief for respondent San Antonio was C. Michael Loftus. Mark White, Attorney General, John W. Fainter, First Assistant Attorney General, Richard E. Gray III, Executive Assistant Attorney General, and James R. Myers and Stuart Fryer, Assistant Attorneys General, filed a brief for respondent State of Texas.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to clarify the allocation of authority, as between the federal courts and the Interstate Commerce Commission, to set and review rates for movements of coal by rail.
I
This case arose as a result of a 1972 decision of San Antonio, Tex., acting through its City Public Service Board, to substitute coal-generated electricity for natural gas. Toward that end, in 1974, San Antonio entered into long-term contracts to purchase coal from two suppliers in Campbell County, Wyo.; began to construct two coal-fired generating units; and initiated negotiations with Burlington Northern Inc. and Southern Pacific Transportation Co. for contracts to transport coal from Wyoming to the new plants. Although the railroads originally quoted San Antonio a rate of $7.90 per ton for moving coal from Campbell County to San Antonio, economic conditions, which were characterized by rapid inflation, required the railroads to raise the rate to $11.90 per ton. In May 1975, San Antonio filed a complaint with the Interstate Commerce Commission seeking prescription of a just and reasonable tariff.
In October 1976, the Commission rendered a decision, San Antonio v. Burlington Northern, Inc., 3551. C. C. 405 (1976) (San Antonio I), establishing a rate of $10.93 per ton for the San Antonio movement. The Commission emphasized that the prescription was temporary by noting: “The public interest requires that, in view of the parties’ inability to reach an agreement, a rate be prescribed at this time so that the movement may commence. As actual experience is gained, the parties may petition for modification of the prescription if circumstances warrant.” Id., at 417-418. The order was to “continue in full force and effect until the further order of the Commission.” Ibid.
The railroads sought review in the United States Court of Appeals for the Eighth Circuit, claiming, inter alia, that the Commission had erred in not considering the Railroad Revitalization and Regulatory Reform Act of 1976, Pub. L. 94-210, 90 Stat. 31 (4-R Act), which became effective before San Antonio I was announced. The Court of Appeals affirmed the Commission, reasoning that since the rate was temporary and expressly subject to modification, the parties could return to the Commission when guidelines for implementing the 4-R Act were promulgated, Burlington Northern, Inc. v. United States, 555 F. 2d 637, 648 (1977).
In June 1977, after six months of operation at the San Antonio I rates, the railroads petitioned the Commission for a modification of the rate. In October 1977, the Commission reopened the San Antonio proceeding, and one year later, issued a new order, San Antonio v. Burlington Northern, Inc., 359 I. C. C. 1 (1978) (San Antonio II), finding that when compared to other similar movements, the San Antonio I $10.93 rate was “below a maximum reasonable rate and that modification of that rate [was] warranted.” 359 I. C. C., at 7. After making extensive new cost findings and applying the ratemaking guidelines of the 4-R Act, the Commission set the maximum rate level at $16.12 per ton.
Both San Antonio and the railroads were dissatisfied with this rate and petitioned for reconsideration. In June 1979, a third order was issued, San Antonio v. Burlington Northern, Inc., 3611. C. C. 482 (1979) (San Antonio III), which made certain modifications in the San Antonio II analysis that resulted in a new maximum rate of $17.23 per ton for the San Antonio movement. The railroads then filed tariffs at the $17.23 rate.
Petitions for review of the San Antonio II and San Antonio III prescriptions were filed in the United States Court of Appeals for the District of Columbia Circuit by all the parties. Without expressing an opinion as to whether the rate was too high, as San Antonio claimed, or too low, as the railroads urged, in June 1980, the Court of Appeals decided that aspects of both the San Antonio II and the San Antonio III rate orders were “arbitrary and capricious” and without “defensible rationale.” San Antonio v. United States, 203 U. S. App. D. C. 249, 269, 631 F. 2d 831, 851. The Commission’s orders were vacated, and the case was remanded to the Commission.
It is at this point that the present controversy arose, for the parties sharply disagreed about the effect of the Court of Appeals’ decision on the filed tariffs pending the Commission’s decision on remand. Construing the decision as vacating only the Commission’s orders in San Antonio II and III but not the rates that were filed, the railroads continued to treat the $17.23 rate as the one which San Antonio was required to pay pursuant to 49 U. S. C. §10761 (1976 ed., Supp. IV). San Antonio, on the other hand, interpreted the Court of Appeals’ decision as vacating the $17.23 rate and reviving the rate set by San Antonio I. Accordingly, the shipper unilaterally reduced its payments to the $10.93-per-ton rate set in 1976.
Although we might have thought otherwise, it was not clear to the railroads what legal action should be taken to force San Antonio to pay the filed $17.23 tariff. Several maneuvers were attempted: in its first effort to reestablish San Antonio III as the rate applicable to this period, the carriers filed a new tariff in early November 1980. That tariff, which would have required San Antonio to prepay at the $17.23 rate before coal service would be provided, was suspended by a division of the Commission which agreed with San Antonio that the Court of Appeals’ decision precluded any rate except $10.93.
The railroads asked the Court of Appeals for clarification of its decision. Pending review, however, the parties carried on their controversy in other forums. The railroads again attempted to file a tariff in conformity with San Antonio III. Although this time the tariff was not suspended or rejected by the Commission, San Antonio continued to pay at the San Antonio I rate even after the new tariff’s December 1980 effective date; in addition, it filed a complaint to enforce the San Antonio I rate in the United States District Court for the Western District of Texas. Before the District Court could rule, the railroads countered by filing a petition asking the Commission to clarify its refusal to suspend or reject the new tariff by declaring that this action amounted to a modification of San Antonio I. In addition, the carriers filed a second prepayment tariff — which was also accepted by the Commission. Before the Commission could react to the railroads’ request for clarification, however, the Texas District Court ruled in San Antonio’s favor on an application to preliminarily enjoin the railroads from conditioning service on prepayment of rates that did not conform with San Antonio I. The railroads appealed to the Court of Appeals for the Fifth Circuit.
In April 1981, while the railroads’ appeal was pending in the Fifth Circuit, the Commission finally took the step necessary to end the controversy over what rate applied from the time of the June 1980 decision of the Court of Appeals for the District of Columbia Circuit. In the context of considering the railroads’ request for clarification, the Commission formally vacated its San Antonio I prescription. The order stated that in a later proceeding, the Commission would determine “what the maximum reasonable rate should have been ... for the period during which the vacated maximum rate prescriptions in San Antonio II and III were in effect.” San Antonio v. Burlington Northern, Inc., 364 I. C. C. 887, 894 (1981) (San Antonio IV). Pursuant to 49 U. S. C. § 10327(h) (1976 ed., Supp. IV), this order became effective 30 days later, in May 1981.
It was at this point that the Fifth Circuit decided the railroads’ appeal of the Texas District Court decision. In its holding, that court vacated the preliminary injunction on the ground that only the Commission had jurisdiction to enjoin railroads from collecting their filed tariff rate. In addition, that court denied an application by San Antonio for a stay of the Commission’s San Antonio IV decision, San Antonio v. Burlington Northern, Inc., 650 F. 2d 49, clarified, 652 F. 2d 422 (1981). Thus, when the Commission’s San Antonio IV decision became effective in May 1981, San Antonio finally began to pay for the shipment of its coal at the carriers’ tariff rate of $17.23 per ton.
One month later, on June 30, 1981, the Court of Appeals for the District of Columbia Circuit issued the clarification of its 1980 holding. 211 U. S. App. D. C. 111, 655 F. 2d 1341. It is this clarification that is under review here. Citing Consolidated Rail Corp. v. National Assn. of Recycling Industries, Inc., 449 U. S. 609 (1981) (per curiam), and Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U. S. 800 (1973), the Court of Appeals held that since it was without authority to determine interim policy pending remand proceedings in the Commission, the effect of the court’s 1980 decision was necessarily to reinstate San Antonio I, which was “revived” by the vacation of San Antonio 11 and 111. 211 U. S. App. D. C., at 114, 655 F. 2d, at 1344. Tariffs set in excess of the San Antonio I rate were therefore declared “unlawful” for the period after the court vacated San Antonio II and III but before the Commission formally vacated San Antonio I. 211 U. S. App. D. C., at 113, 655 F. 2d, at 1343. We granted certiorari. 455 U. S. 988 (1982).
We agree that Consolidated Rail and Wichita Board of Trade control this case, but these holdings require federal courts to defer to the Commission on questions concerning the applicable rates; accordingly, we reverse.
II
In recent years, we have had four occasions to consider federal courts’ authority to alter rail rates regulated by the Interstate Commerce Act. In the first of these, Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (1963), a railroad faced with declining revenues had attempted to lower its rates, and the issue before us was whether a Federal District Court had the power to enjoin this reduction at the request of competitors of the railroad and those who shipped by rail. Affirming the District Court’s denial of an injunction, we held that Congress, in the Interstate Commerce Act, meant to “vest in the Commission the sole and exclusive power to suspend” the rates. Id., at 667.
We noted several reasons for this rule. First, a review of the legislative history of the 1910 amendments to the Interstate Commerce Act demonstrated that Congress was dissatisfied with the nonuniformity in rates and inequities that resulted from the 1887 Interstate Commerce Act’s failure to give the Commission power to grant injunctive relief. We noted that the authority to suspend rates granted the Commission by the 1910 amendments would not cure the problem unless the suspension power was exclusive. Id., at 664.
Second, we held that court-ordered injunctive relief would interfere with the careful way in which the Commission’s suspension power takes into account the need of the carrier to receive a reasonable rate of return, and the desire of the shipper to pay only what is lawful. Unlike an injunction, a suspension order is limited to seven months’ duration. Id., at 665-666. The shippers, on the other hand, are fully protected by the reparation provision which requires carriers to reimburse shippers if the Commission later determines that the filed tariff was unreasonable. Id., at 666.
Finally, we emphasized that court-ordered injunctions were inconsistent with the congressional intent to vest rate-making decisions in the Commission, stating:
“Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.” Id., at 668. (Emphasis in original.)
Ten years later, we again considered a federal court’s power to enjoin rail rates in United States v. SCRAP, 412 U. S. 669 (1973). There we reversed a three-judge District Court that had enjoined the Commission from permitting surcharges on shipments of recycled goods. We rejected the argument that injunctive relief could be granted under authority conferred by the National Environmental Policy Act, 42 U. S. C. §4331 et seq., stating that “to grant an injunction in the present context, even though not based upon a substan tive consideration of the rates, would directly interfere with the Commission’s decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow. . . .” 412 U. S., at 697. (First emphasis added; other in original.)
A third case, Wichita Board of Trade, supra, stated our position in even stronger terms. There the Commission had approved certain rate increases but failed, in the District Court’s view, to explain its reasoning adequately. In addition to vacating the order and remanding the case for reconsideration by the Commission, the District Court enjoined the railroads from charging the rates that had been approved in the order. Although we affirmed the remand to the Commission, we nevertheless reversed as to the injunction, reiterating the views we expressed in Arrow that a federal court has no jurisdiction to enter an order that operates to fix rates.
“The only consequence of suspending [an] order is that the railroads may not rely, in some subsequent proceeding, on a Commission finding that the proposed rates were just and reasonable. . . .
“Carriers may put into effect any rate that the Commission has not declared unreasonable. . . . Suspension of the Commission’s order thus does not in itself preclude the carriers from implementing a new rate.” 412 U. S., at 818-819. (Emphasis added.)
Again we noted that Congress channeled all rate decisions to the Commission in the first instance, id., at 820; that court-ordered relief interferes with the delicate balance the Act strikes between the competing interests of shipper and carrier, ibid.; and that the equities favor allowing the railroads to charge more than the Commission may ultimately find reasonable because the Act gives the shippers a right to reparations while no such protection is given to the carriers, id., at 823.
We now turn to our recent holding in Consolidated Rail, supra, which both parties appear to concede states the controlling law. There the Commission fixed rates for recycled materials. On review, the Court of Appeals revoked the rate increases, remanded to the Commission to determine a rate structure incorporating the standards set forth in the 4-R Act, and enjoined new rates until after the Commission’s reconsideration. In reversing this holding summarily, we held:
“The authority to determine when any particular rate should be implemented is a matter which Congress has placed squarely in the hands of the Commission. Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 662-672 (1963). . . . [T]here is no basis in our prior decisions for the revocation order or for the injunction against further increases. Tf a reviewing court cannot discern [the Commission’s] policies, it may remand the case to the agency for clarification and further justification. . . . When a case is remanded on the ground that the agency’s policies are unclear, an injunction ordinarily interferes with the primary jurisdiction of the Commission.’ Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U. S. 800, 822 (1973)_” 449 U. S., at 612. (Emphasis added.)
To recapitulate, our cases stand for three propositions: (1) under the Interstate Commerce Act, primary jurisdiction to determine the reasonableness of rates lies with the Commission, see also Arizona Grocery Co. v. Atchison, T. &S.F.R. Co., 284 U. S. 370, 384 (1932); (2) federal-court authority to reject Commission rate orders for whatever reason extends to the orders alone, and not to the rates themselves, cf. 28 U. S. C. § 2349(a) (“The court of appeals . . . has exclusive jurisdiction to make. . . a judgment determining the validity of, and enjoining;. . . the order of the agency”) (emphasis added); (3) where there is a dispute about the appropriate rate, the equities favor allowing the carrier’s rate to control pending decision by the Commission, since under the Act, the shipper may receive reparations for overpayment while the carrier can never be made whole after underpayment. 49 U. S. C. § 11705(b)(3) (1976 ed., Supp. IV). Cf. Atlantic Coast Line R. Co. v. Florida, 295 U. S. 301 (1935).
HH J — I
We can discern no basis to distinguish this case from Arrow, SCRAP, Wichita Board of Trade, and Consolidated Rail, supra. By entering an order declaring that the San Antonio 1 rate order was “revived” for the period June 1980-May 1981, the Court of Appeals did that which we have said a federal court may not do: i. e., freeze the rate that railroads charge shippers prior to a decision by the Commission as to what a reasonable rate should be. That approach undermines the Commission’s ability to exercise the primary jurisdiction delegated to it by Congress to insure equitable and uniform rates. More important, the determination requires the railroads to accept a return that was considered temporary when it was approved in 1976, and “below a maximum reasonable rate” when it was modified in 1978. This result would be inequitable in the best of times, but the impact is particularly acute in a period of high inflation and changing regulatory standards.
Because the reparations provisions do not apply to both shippers and carriers, losses suffered by the carriers cannot be recovered. Carriers are not adequately protected by their authority under §§ 10761 and 10762 to file a new rate or their right under § 10327(g) to petition the Commission to modify its “revived” rate order, as San Antonio urges. It is arguable — and in other proceedings, San Antonio has so claimed, see Brief for Petitioners 38-39 — that before either action can take effect, the party adversely affected may ask for a hearing pursuant to Arizona Grocery, supra. A plenary hearing necessarily causes delay, and even if it did not, action by the Commission usually will not be effective until 30 days have elapsed after its order is served, § 10327(h).
The claim is made that the Court of Appeals was powerless to achieve a different result because, under § 10704(a)(1), the only rate the railroads could legally charge was the rate prescribed by the Commission. Since the Commission prescribed a rate in San Antonio I, the argument is that this is the rate the railroads must charge. We disagree. San Antonio I was by its terms limited to “continue in full force and effect until . . . further order of the Commission,” 355 I. C. C., at 418. Absent a contrary indication from the Commission, San Antonio II terminated the vitality of San Antonio I.
Moreover, if the court was unsure about the continued vitality of San Antonio I, the more appropriate course would have been to remand to the Commission for explanation rather than to undertake itself to construe the order, and in so doing to interfere with the Commission’s primary jurisdiction, contrary to important congressional policies.
The existence of a 1976 rate prescription does not require a result different from the result reached in Consolidated Rail. San Antonio II and III each in turn vacated the prescription which preceded it. In striking the orders in San Antonio II and III, the court’s action operated to leave in effect the rates filed under the Commission’s authority pending the Commission’s redetermination of a reasonable rate and subject always to reparations to protect the shipper should the Commission find that these rates were too high.
The June 30, 1981, judgment of the Court of Appeals is
Reversed.
The 4-R Act changed the regulatory atmosphere in several key respects. Especially relevant here is § 205, which, as codified at 49 U. S. C. § 10704(a)(2) (1976 ed., Supp. IV), instructs the Commission to "make an adequate and continuing effort to assist. . . carriers in attaining revenue levels” that are “adequate, under honest, economical and efficient management, to cover total operating expenses . . . plus a reasonable and economic profit or return (or both) on capital employed in the business.”
For convenience, we continue to refer to the rates as “San Antonio I,” “San Antonio II," and “San Antonio III." In actual fact, general rate increases, which are not in issue here, have taken effect significantly raising each of these rates. See Brief for Petitioners 9, n. 3.
Initially, the Commission took the position adopted by the panel, namely that the Court of Appeals’ decision required the railroads to charge at San Antonio I rates. While the petition for clarification was pending, however, our decision in Consolidated Rail Corp. v. National Assn. of Recycling Industries, Inc., 449 U. S. 609 (1981) (per curiam), was handed down. At about this time, the Commission revised its view to espouse the railroads’ position. The Federal Government has thus joined the railroads in asking us to overturn the decision of the Court of Appeals.
In the period in dispute, from June 1980, when the Court of Appeals vacated the San Antonio II and III orders, to May 1981, when the Commission formally vacated the San Antonio I prescription, San Antonio’s failure to pay the tariff rate resulted in a savings to it — and a loss to the railroads — of over $19 million. See Brief for Federal Respondents 6.
San Antonio argues that the railroads’ failure to petition for certiorari within 90 days after rehearing was denied on the June 1980 judgment deprives this Court of jurisdiction. Because the June 1981 decision “resolve[d] a genuine ambiguity in a judgment previously rendered” and dealt with a question which was not “plainly and properly settled with finality,” FTC v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 211-212 (1952) (footnote omitted), we plainly have jurisdiction.
Under § 207(d)(2) of the Staggers Rail Act of 1980, Pub. L. 96-448, 94 Stat. 1907, 49 U. S. C. § 10707(d)(2) (1976 ed., Supp. IV), the carrier can also receive reparations. This right is limited, however, to underpayments resulting from the Commission’s suspension of a tariff; it does not apply where, as here, a court has prevented the carrier from collecting a higher tariff.
See, e. g., 4-R Act, discussed in n. 1, supra; Staggers Rail Act of 1980, Pub. L. 96-448, 94 Stat. 1895, supra. Both statutes are directly relevant in the determination of a reasonable rate for the San Antonio coal movement; neither was considered in San Antonio I..
San Antonio makes much of the dictionary definitions of “modify” and “vacate.” While ordinary meanings are not insignificant in statutory construction, San Antonio has not cited a single case under the Interstate Commerce Act making this distinction.
Another way in which the Court of Appeals might have minimized interference with congressional objectives would have been to construe its own opinion as vacating only the Commission’s new rate calculations and not the Commission’s conclusion that the San Antonio I rate was too low. See 28 U. S. C. § 2349(a), allowing the court to enjoin or set aside “in whole or part, the order of the agency.” Cf. Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U. S. 800, 822 (1973).
Because we find that Consolidated Rail mandates this result, we need not reach the railroads’ claim that the decision oí the Court oí Appeals is inconsistent with the filed rate doctrine.
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_respond1_3_2
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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.
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.
PHILADELPHIA MARINE TRADE ASSOCIATION and Its Members, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Local 1291, ILA, Intervenor. Local 1332, ILA, Intervenor. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION LOCALS 1291, 1332, 1566 AND 1242, Petitioners, Local 1332, ILA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Philadelphia Marine Trade Association and Its Members, Intervenors.
Nos. 14225 and 14257.
United States Court of Appeals Third Circuit.
Argued Nov. 4, 1963.
Decided April 6, 1964.
Robert G. Kelly, Philadelphia, Pa. (Kelly, Deasey & Scanlan, Philadelphia, Pa., on the brief), for Philadelphia Marine Trade Assn.
Abraham E. Freedman, Philadelphia, Pa. (Martin J. Vigderman, Wilfred F. Lorry, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for petitioners.
Elliott Moore, NLRB, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, on the brief), for National Labor Relations Board.
Lisbon U. Tillman, Philadelphia, Pa. (John Stuart Carnes, Philadelphia, Pa., on the brief), for Intervenor Local 1332, International Longshoremen’s Union.
Before STALEY, HASTIE and SMITH, Circuit Judges.
STALEY, Circuit Judge.
The National Labor Relations Board has found that the employer-members of the Philadelphia Marine Trade Association (“PMTA”) violated § 8(a) (3) and (1) of the National Labor Relations Act. More specifically, the Board determined that these employers wrongfully locked out all of the longshoremen employed by them in the Port of Philadelphia because certain of those longshoremen properly refused to work under conditions found to be unsafe. 138 N.L.R.B. 737 (1962). The case is here on petitions for review filed by the PMTA and by the International Longshoremen’s Association, Locals 1291, 1332, 1566, and 1242. The Board has requested enforcement of its order in its answer to the petition of the PMTA. The PMTA asserts that the Board’s determination is unwarranted, while the union contends that the Board should have found additional violations and that its back pay award is inadequate.
The dispute which gave rise to the instant proceeding was based upon the insistence by one of the employer-members of the PMTA, Atlantic and Gulf Stevedores, Inc., that the longshoremen employed by it use wooden pallets instead of slings to unload a cargo of sugar on the S.S. Caribe. Perhaps the most concise statement of the factual circumstances attending this controversy is contained in the following excerpt from the decision of the Board:
“As the Trial Examiner found, on June 30, 1959, some 90 A & G employees, longshoremen members of Local 1291, reported to the S.S. Caribe to unload a full cargo of bagged sugar. Upon arrival, they learned that they were to unload the bags with the use of pallets rather than slings. They notified their union representatives that they would not unload with pallets as they considered such an operation unsafe. The representatives communicated the longshoremen’s decision to Emery, the pier supervisor of A & G, and a compromise proposal was offered by Emery whereby the longshoremen would unload the ship with slings and then use pallets for re-handling the bags on the dock. By the time Local 1291 accepted, however, the proposal was abruptly withdrawn by William Toner, District Manager of A & G, who made his appearance while the Union representatives were conferring among themselves. The longshoremen then left the ship, and worked neither that day nor the following day, July 1. After several conferences between officials of ILA, A & G, and PMTA, an employers’ association of which A & G was a member, an agreement was reached between Toner and J. T. Moock, a vice-president of ILA, whereby the men would start unloading with pallets and a changeover to slings would be made shortly thereafter.
“At 8 a. m. on July 2, the A &. G longshoremen began unloading with the use of pallets. It is clear, as the Trial Examiner found, that bags of sugar fell from the pallets during the unloading operation. And Toner admitted that even one falling bag was dangerous. When a shift to slings was not made by A & G during the morning despite the complaints of the longshoremen, they refused to return to work after lunch. The Respondents thereupon advised ILA by telegram that unless the A & G longshoremen resumed work on the Cai'ibe at 8 a. m. on July 3, all longshoremen represented by Local 1291 would be locked out throughout the entire Port of Philadelphia commencing July 6. At 8 a. m. on July 3, however, A & G still had not shifted to slings, and the Caribe longshoremen accordingly continued to refuse to work. At noon all the other longshoremen members of Local 1291 in the Port of Philadelphia area stopped work to meet at the union hall for a discussion of the lockout threatened by the Respondents. They were directed by ILA officials to report for work as usual on July 6. When they did, however, the Respondents carried out their threat and locked them out. Moreover, the Respondents insisted that the lockout would not be lifted until the A & G longshoremen resumed work under the unsafe conditions which had caused them to cease work in the first place. The Respondent further refused to consider the safety question under the grievance and arbitration provisions of the contract until the longshoremen resumed work on the Caribe. On July 21, however, the Respondents finally receded from their position, agreed to end the lockout, and likewise agreed to arbitrate the safety question. On the following day, the arbitrator observed the operation of unloading the bagged sugar from the Caribe with the use of pallets, and found it to be an unsafe operation. Thereupon, A & G substituted slings, and the A & G longshoremen completed their work of unloading the Cai'ibe, without further incident.”
The Board held that, as the longshoremen’s refusal to work resulted from an abnormally dangerous condition of work, this refusal did not constitute a strike under § 502 of the Act, even assuming the existence of a no-strike contract. Accordingly, this quitting of labor was held to be protected by the Act, and the lockout was found to be in violation of § 8(a) (3) and (1). Back pay was awarded to all longshoremen, including those who-had refused to work on the S.S. Caribe, from the date of the lockout on July 6, 1959, until July 22, 1959. However, the Board, reversing the trial examiner, concluded that, in the circumstances of this case, the employers did not discriminate against the members of sister unions who did not work during the period of the lockout and who were normally employed as maintenance men, timekeepers, checkers, or carloaders in the Port of Philadelphia.
The PMTA does , not seriously challenge the Board’s finding that the work stoppage was caused by an abnormally dangerous condition of work. See National Labor Relations Board v. Knight Morley Corp., 251 F.2d 753 (C.A. 6, 1957), cert. denied, 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370 (1958). The Association argues, however, that the lockout was justified because its purpose was to compel the union to abandon a “quickie strike,” and to compel the submission of the dispute to arbitration. The short answer to this is that because the union’s activity was found to come within the ambit of § 502, it was not a strike in violation of the contract but, on the contrary, was protected activity. In these circumstances, the Board properly concluded that the lockout by the PMTA in an attempt to compel the longshoremen to abandon this protected activity gave rise to a violation of § 8(a) (3) and (1). See, Utah Plumbing and Heating Contractors Assn. v. National Labor Relations Board, 294 F.2d 165 (C.A.10, 1961); Quaker State Oil Refining Corp. v. National Labor Relations Board, 270 F.2d 40 (C.A.3), cert. denied, 361 U.S. 317, 80 S.Ct. 261, 4 L.Ed.2d 185 (1959) ; National Labor Relations Board v. Knight Morley Corp., supra (discharge for refusal to work under abnormally dangerous conditions). Moreover, the Board, based upon substantial evidence, found that it was the PMTA and not fhe union which delayed arbitration by its insistence that the employees continue to work pending a resolution of the issue. Thus, to the extent that the challenge of the PMTA to the finding of an unfair labor practice constitutes an attack upon the Board’s findings of fact, including both the inferences it drew from the evidence presented as well as its resolution of issues of credibility, we have repeatedly stated that such factual .determinations will not be disturbed by this court unless not supported by substantial evidence in the record as a whole. National Labor Relations Board v. Chas. S. Wood & Co., 309 F.2d 140 (C.A.3, 1962); National Labor Relations Board v. Buitoni Foods Corp., 298 F.2d 169 (C.A.3, 1962); Quaker State Oil Refining Corp. v. National Labor Relations Board, supra. Here the findings of the Board are amply supported by the evidence.
The reliance by the PMTA upon the decision in National Labor Relations Board v. Truck Drivers’ Local Union No. 449 etc., 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), as justification for the lockout is misplaced. The Supreme Court there held that a lockout by an association of employers is not unlawful when used as a defense to a union’s “whipsawing” strike tactic which threatens the destruction of the employers’ interest in bargaining on a group basis. See also New York Mailers’ Union Number Six, International Typographical Union, A.F.L.-C.I.O. v. National Labor Relations Board, 327 F.2d 292 (C.A.2, 1964). Here the lockout was a countermeasure not to a strike, but -to a refusal to work under abnormally dangerous conditions. Nor was this conduct of the longshoremen a threat to bargaining on a group basis.
Local 1332 of the International Longshoremen's Association has been granted leave to intervene in each of these petL tions for review. Both it and the other union parties to this proceeding vigorously attack the failure of the Board to find a violation with respect to employees other than longshoremen who were affected by the lockout. Because of its significance, we quote the holding of the Board on this score:
“We do not agree, however, with the Trial Examiner’s further conclusion that the lockout of the longshoremen also constituted unlawful discrimination against members ■ of sister locals normally employed by Respondents as maintenance men or timekeepers or checkers or carloaders. The complaint does not allege that members of these sister locals (specifically, Locals 1332, 1566 and 1242) were also locked out by Respondents, nor does the evidence adduced at the hearing lead us to this conclusion. Accordingly, we find, in the circumstances of this case, that the Respondents did not discriminate against the other categories of employees represented by Locals 1332, 1566, and 1242.”
The unions argue that this holding constitutes an unwarranted reversal by the Board of the factual finding of the trial examiner that these employees were deprived of an opportunity to work by the lockout. Further, the unions contend that the Board was compelled to find a violation as to these employees because their work “was interrelated with and wholly dependent upon the work performed by [the longshoremen].”
The Board concedes that these employees lost work as a consequence of the lockout. It urges that its reversal of the trial examiner on this point was not based on a contrary view of the facts, but upon its view of the legal effect of the facts he found. More particularly, the Board contends that the loss of work by employees other than longshoremen did not result from any discriminatory action by the PMTA against them, but was simply an incidental consequence of the discriminatory action taken against the longshoremen.
We think that the Board’s reversal of the trial examiner was based on an issue of law rather than a question of fact. Though at first glance the language in its decision appears to indicate a different view of the evidence, actually the Board was reversing the trial examiner’s legal conclusion that “the lockout of Local 1291 members resulted in equally unlawful discrimination against members of sister locals, since much of their employment depended upon longshoremen being employed.”
It is not controverted that the PMTA had no dispute with the members of the sister locals; its dispute was with the longshoremen because of their refusal to work under conditions found to be dangerous. To put the matter another way, there is no evidence of any discriminatory motivation toward employees other than longshoremen. As the Board aptly observes in its brief, the consequential injury to the other workers “occurred because of the nature of their work, not by virtue of their membership in any union.” In the absence of any evidence of discriminatory intent, the employers’ action was not unlawful as to these employees, unless it was “inherently discriminatory.” National Labor Relations Board v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). We have already stated that the record does not reveal an intent to discriminate against the members of the sister locals, and we cannot say that the lockout was inherently discriminatory as to them in the circumstances of this case. In sum, the conduct of the employers was directed against the longshoremen, and only incidentally did it affect the other workers in the Port of Philadelphia.
Our recent decision in National Labor Relations Board v. Local 825, International Union of Operating Engineers, A.F.L.-C.I.O., 326 F.2d 218 (C.A.3, 1964), supports our conclusion on this point. We there ruled that union conduct which only incidentally affects a neutral employer cannot be held to violate the secondary boycott provisions of the Act.
Local 1291 asserts that the back pay award to the longshoremen who refused to work on the S.S. Caribe should run from the date of their refusal to work rather than from the date of the lockout. The Board contends that the award is proper since the unfair labor practice did not occur until the PMTA instituted the lockout. We think that the rationale of the Board is sound, for though the longshoremen were protected by the statute in refusing to work under abnormally dangerous conditions, no unfair labor practice arose until they were locked out by their employer. In any event, we cannot say that the Board abused the broad discretion vested in it to fashion remedial back pay orders to effectuate the policies of the Act.
The order of the Board will be enforced. A form of decree may be submitted.
. Ҥ 158. Unfair labor practices
“ (a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
* * * *
“ (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * 29 U.S.C.A. § 158(a) (1) and (3).
. Ҥ 143. Saving provisions
“Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, * * * nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.” 29 U.S.C.A. § 143.
. The same observations apply to the contention that the employers were not informed that the quitting of labor resulted from abnormally dangerous conditions of work, and that they were not given a reasonable opportunity to correct these conditions,
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_counsel2
|
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 respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Kent Thomas L’ALLIER, Defendant-Appellant.
No. 87-1460.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 2, 1987.
Decided Jan. 28, 1988.
Gerald C. Nichol, Madison, Wis., for defendant-appellant.
Daniel P. Bach, Asst. U.S. Atty., John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee.
Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.
FLAUM, Circuit Judge.
Defendant-appellant, Kent Thomas L’Al-lier, was convicted of two counts of armed robbery under 18 U.S.C. §§ 2113(a) and (d). L’Allier challenges his conviction on the grounds that: (1) the government’s delay in indicting him violated the due process clause of the fifth amendment; (2) the district court’s denial of his motion to suppress identification evidence was an abuse of discretion; (3) counts I and II of his indictment were improperly joined and the district court abused its discretion when it denied his motion to sever; and (4) the district court erred by permitting the introduction of certain evidence despite the government’s failure to establish a complete chain of custody. We affirm.
I.
On October 29, 1984, a single armed robber took $7,940 from the Community State Bank of Eau Claire, Wisconsin. Witnesses described the robber as a man between five feet ten inches and six feet tall, 160 to 170 pounds, with a slim build. The robber wore a white hooded sweatshirt with the hood pulled up, dark gloves, dark glasses, a false mustache and a false beard. He fled the bank on foot into a nearby neighborhood. A few days before the robbery, a resident of Chippewa Street (a street near the bank) saw a man wearing a white sweatshirt with “USA” printed on the front “scouting” the neighborhood.
On April 22, 1985, the Community State Bank of Eau Claire was robbed again by a single armed robber. This time the robber took $3,085 from the bank, including $500 of prerecorded bait bills in $20 denominations. Witnesses described the robber as a man with a slim build, between five feet eight inches and six feet tall, and weighing between 140 and 170 pounds. The robber wore a blue hooded sweatshirt, a green stocking cap, dark glasses, brown work gloves, a false mustache and a false beard. The robber was armed with a small chrome or silver plated revolver. He fled the bank on foot toward the homes on Chippewa Street.
From October 11, 1984 through October 17, 1984, L’Allier rented a room at the Westgate Motel in Eau Claire, Wisconsin under the name “Dennis Sigsworth.” The defendant again rented a room at this hotel under this same alias from April 10, 1985 to April 16,1985 and on several other occasions.
The defendant was arrested on an unrelated charge on June 24, 1985. When arrested, L’Allier identified himself as Dennis Sigsworth. The arresting officers found a small silver revolver wrapped in a green ski mask in L’Allier’s car. L’Allier’s car was then driven to the St. Croix County Sheriff’s Department where it was sealed with evidence tape. Earl Clark and Mark Willink of the St. Croix Sheriff’s Department conducted an inventory search of the car on June 25, 1985. At trial, Clark testified that during the inventory search of L’Allier’s car they found three white hooded sweatshirts and at least one blue pullover. Willink testified that they found three white hooded sweatshirts, one of which had “USA” in red letters on the front, and two blue pullovers. They also found two pairs of brown work gloves. In addition, Clark and Willink found ten twenty dollar bills, seven of which were bait bills from the April 22, 1985 bank robbery. On July 10, 1985, the St. Croix Sheriff’s Department released L’Allier’s car and personal articles to his brother, Randy L’Allier. An FBI agent retrieved three sweatshirts, one plain white, one blue and one white with the letters “USA” printed on it, from Randy’s home on July 16th.
On October 8, 1986, a federal grand jury indicted L’Allier on two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). The first count charged L’Allier with the October 29, 1984 armed bank robbery of the Community State Bank of Eau Claire, Wisconsin. Count II charged the defendant with the April 22, 1985 armed robbery of the same bank. The defendant moved to dismiss his indictment on the basis of impermissible prein-dictment delay. The district court denied the motion. Before trial, L’Allier also moved to have counts I and II of his indictment severed. L’Allier argued that severance was required because the crimes charged in the two counts were not sufficiently related. L’Allier also asserted that severance was necessary on the ground that the government’s case on count II was much stronger than its case on count I. This disparity in the strength of the government’s evidence, L’Allier argued, would prejudice his defense and cause a jury to convict him on both counts, even though standing alone there was not enough evidence to prove guilt beyond a reasonable doubt on count I. The district court also denied this motion.
At trial, L’Allier moved to suppress any in-court identification of himself by Rick Iverson, a government witness, on the ground that Iverson’s identification would be based on an impermissibly suggestive pretrial identification procedure. Iverson testified that he saw the defendant outside the Eau Claire bank just prior to the April 22, 1985 robbery, but admitted that he had been shown a pretrial photo display. The district court held that the pretrial identification procedure was not impermissibly suggestive and therefore denied L’Allier’s suppression motion. Finally, L’Allier sought to prevent the introduction into evidence of several sweatshirts because the government could not establish a complete chain of custody. The district court admitted the sweatshirts over L’Allier’s objection.
A jury found L’Allier guilty of both armed bank robberies. The district court sentenced L’Allier to two consecutive ten year prison sentences, and to an additional five year prison term on each count pursuant to the enhancement provisions of 18 U.S.C. § 924(c). The five year enhancement sentences are concurrent with one another and consecutive to the initial ten year sentences.
II.
L’Allier first argues that the district court erred in denying his motion to dismiss his indictment. L’Allier claims that excessive pre-indictment delay actually and substantially prejudiced his defense in violation of the due process clause of the fifth amendment. L’Allier was arrested on charges unrelated to the bank robberies on June 24, 1985. The following day, the St. Croix Sheriff’s Department performed an inventory search of his car which revealed evidence linking L’Allier to both armed robberies. L’Allier was not indicted for the armed bank robberies, however, until October 8, 1986 — two years after the first robbery and sixteen months after the search of his car revealed evidence related to those crimes. L’Allier argues that this delay was excessive and caused him actual and substantial prejudice in the presentation of his defense.
L’Allier claims actual and substantial prejudice to his defense in two different forms. First, L’Allier asserts that as a result of the delay his memory of the events of October 29, 1984 and April 22, 1985 was diminished. Thus, L’Allier argues, he was unable to assist his counsel because he could not recall his whereabouts and activities on the dates of the robberies. Second, L’Allier alleges that he was prejudiced by a similar memory loss on the part of the witnesses to the bank robberies. L’Allier argues that the witnesses’ faded memories prejudiced his defense because the witnesses could not clearly recall whether or not he was actually the person they saw robbing the bank on those dates. There is no evidence, apart from L’Allier’s allegations, that he or any witness to the robberies was actually unable to recall any of the events of October 29, 1984 or April 22, 1985.
The relevant statute of limitations provides the primary protection for defendants against prejudice that could result from excessive pre-accusation delay. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). The indictment in this case was returned well within the applicable statute of limitations. The due process clause of the fifth amendment, however, does have a limited role to play in the protection of defendants’ rights prior to indictment and the prevention of oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). Thus, an indictment must be dismissed pursuant to the due process clause if a defendant can show that the pre-indictment delay caused substantial prejudice to his or her right to a fair trial and the delay was intentionally designed to gain a tactical advantage over the defendant. Marion, 404 U.S. at 324, 92 S.Ct. at 465. The defendant bears the burden of showing actual and substantial prejudice to his or her defense resulting from the delay. United States v. Brock, 782 F.2d 1442, 1443 (7th Cir.1986).
While actual prejudice makes a due process claim ripe for adjudication, it does not make the claim automatically valid. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. “[Pjroof of prejudice is generally a necessary but not sufficient element of a due process claim,” the reasons for the delay must be considered along with the prejudice to the defendant. Id. at 790, 97 S.Ct. at 2048-49. Even a short and necessary delay may actually and substantially prejudice a defendant’s case, and yet “no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” Marion, 404 U.S. at 324, 92 S.Ct. at 465. A court must therefore weigh the actual prejudice to the defendant against the reasons for the delay to determine whether a particular indictment must be dismissed pursuant to the due process clause. Id. at 325, 92 S.Ct. at 466. Thus, even if L’Allier can show actual and substantial prejudice to his defense as a result of the sixteen month pre-indictment delay, the indictment will not be dismissed if there was a legitimate reason for the delay.
L’Allier’s only allegation of prejudice is that his and the witnesses’ memories faded as a result of the delay. L’Allier, however, can point to no evidence in the record to substantiate this claim. Such unsupported allegations cannot establish actual or substantial prejudice to L’Allier’s defense. See Brock, 782 F.2d at 1444 (Brock’s unsubstantiated allegation that his memory may have faded was insufficient to establish actual and substantial prejudice); United States v. Watkins, 709 F.2d 475, 479 (7th Cir.1983) (a general assertion that delay prevented the defendant from accurately reconstructing events does not constitute a showing of substantial and actual prejudice). L’Allier’s unsupported allegation of memory loss therefore does not constitute the requisite substantial prejudice required to prove a due process violation.
There is a conflict in this circuit as to whether the defendant or the government bears the burden of establishing the reasons for the pre-indictment delay once the defendant successfully shows actual and substantial prejudice. See, e.g., Brock, 782 F.2d at 1443 n. 1. Because we find that L’Allier failed to meet his burden of showing actual and substantial prejudice to his defense, we need not resolve this conflict. United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984). We note, however, that the government was either unable or unwilling to explain the substantial delay in this case. The government makes no claim that the delay resulted from a continuing investigation, nor does it assert that additional information was sought or discovered during the sixteen months between L’Allier’s arrest and indictment. The government had significant evidence linking L’Allier with the robberies as early as June 25, 1985; it is troubling that it took a full sixteen months from that date to indict him on these charges.
Because we find that L’Allier failed to meet his threshold burden of showing actual and substantial prejudice to his defense, we hold that the district court did not abuse its discretion in denying L’Allier’s motion to dismiss his indictment.
III.
L’Allier next argues that the district court erred when it permitted Rick Iverson, a government witness, to identify L’Allier in court as the person he saw outside the Community State Bank of Eau Claire just before the bank robbery on April 22, 1985. L’Allier argues that Iverson’s in-court identification was tainted by an impermissibly suggestive pretrial photo line-up that was shown to Iverson on July 17, 1985. Thus, L’Allier claims there was a substantial likelihood that Iverson’s in-court identification was the result of irreparable misidentification.
Suggestive confrontations are disapproved because they increase the risk that a conviction will be based on a misidentifi-cation. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). The court must consider the facts of each case to determine whether or not “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). If the confrontation procedure was impermissibly suggestive, an in-court identification will be permitted only if under the “totality of the circumstances the identification was reliable.” Biggers, 409 U.S. at 199, 93 S.Ct. at 382.
The defendant has the initial burden of establishing that the confrontation procedure was impermissibly suggestive. United States v. Briggs, 700 F.2d 408, 412 (7th Cir.), cert. denied, 462 U.S. 1110, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). Only if the defendant meets this initial burden will the court consider the admissibility of the identification under the “totality of the circumstances” test. Id. To meet his initial burden of proving that the photo line-up was impermissibly suggestive, L’Allier must show that there was a substantial likelihood that Iverson’s identification was based on an irreparable misidentification. L’Allier has not met this threshold requirement.
Iverson was shown seven photographs and asked if he could identify the man he saw outside of the Community State Bank on the day of the second robbery. There is no evidence that the FBI agent who displayed the photographs said or did anything that would have suggested that Iver-son should pick L’Allier’s photograph from the line-up. L’Allier argues that the photo line-up was impermissibly suggestive because there were differences in the exposure and the quality of the photographs in the display. L’Allier also takes issue with the fact that two of the seven photographs were the type ordinarily used by the police, and one of those two pictures was the photograph of L’Allier. A review of the photographs, however, reveals that the asserted differences are minor and not suggestive. Such minor differences standing alone do not establish that the confrontation procedure was impermissibly suggestive. See United States v. Kimberlin, 805 F.2d 210, 227 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987).
L’Allier failed to carry his burden of showing that there was a substantial likelihood of misidentification resulting from the photo line-up. We hold, therefore, that the district court did not err in permitting Iver-son’s in-court identification of the defendant.
IV.
A.
L’Allier also argues that his conviction must be reversed because counts I and II of his indictment were improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure. L’Allier claims that joinder of these counts was so prejudicial that he did not receive a fair trial. According to L’Allier, the only common element between counts I and II is that they both involved armed robberies of the same bank.
On appeal, the issue of whether joinder was proper is a question of law which we review de novo. United States v. Shue, 766 F.2d 1122, 1134 (7th Cir.1985). A conviction obtained under improperly joined counts can be reversed. Id. See also United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981) (“Improper joinder under Rule 8 requires mandatory severance.”). Although a liberal joinder rule would promote judicial economy and expedition, it is undisputed that joinder can be prejudicial. Therefore, the benefits of joinder must be balanced against the defendant’s right to a trial free of prejudice. Holmes v. Gray, 526 F.2d 622, 625 (7th Cir.1975), cert. denied, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 194 (1977).
The Federal Rules of Criminal Procedure perform part of this balance by permitting the joinder of offenses only when certain specified conditions are met. Rule 8(a) allows joinder of two or more offenses only “if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). Joinder of offenses on the ground that they are of the same or similar character is permissible if the “counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps.” Shue, 766 F.2d at 1134 (quoting United States v. Rodgers, 732 F.2d 625, 629 (8th Cir.1984)). This standard does not require that every piece of evidence of one offense be admissible in a separate trial on the other offense. Rather, the joinder rule “looks in a broader sense to whether the rules relating to ‘other crimes’ evidence have been satisfied.” Baker v. United States, 401 F.2d 958, 975 (D.C.Cir.1968) (per curiam); Holmes, 526 F.2d at 625 n. 3.
The government argues that counts I and II of L’Allier’s indictment were properly joined because they involve offenses of the same or similar character. We agree. Counts I and II charged L’Allier with the armed bank robbery of the same bank on two separate occasions, the robberies occurred within six months of one another, and evidence of one robbery would have been admissible, with a proper limiting instruction, in a separate trial of the other robbery to establish the bank robber’s modus operandi. The witnesses’ descriptions of the perpetrator of both robberies were similar. The robberies occurred at the same time of day, both times a single armed robber entered the bank wearing a false mustache and beard, dark work gloves, and dark glasses. On both occasions the robber carried a small firearm and fled on foot into a nearby neighborhood. In both robberies the armed robber wore a hooded sweatshirt; the first time it was a white sweatshirt with the hood pulled up, the second time it was a blue sweatshirt with the hood down and a green ski cap. Prior to both robberies L’Allier was registered under the same false name at a motel in Eau Claire, Wisconsin. Finally, when L’Allier was arrested on June 24, 1985, evidence relating to both robberies was found in his car.
The extensive similarities between the bank robberies charged in each count, the overlap of evidence, and the relative closeness in time of the two crimes make joinder proper in this case under Rule 8(a). See Shue, 766 F.2d at 1134 (joinder proper where counts alleged robberies of different banks, robberies occurred fifteen months apart, robber used fake grenade in one robbery and fake or unloaded gun in the others). We hold therefore that joinder under Rule 8(a) was appropriate in this case.
B.
L’Allier asserts that even if joinder was proper, however, it was sufficiently prejudicial that severance was required under Federal Rule of Criminal Procedure 14 and the district court’s denial of his motion for severance violated his right to due process under the fifth amendment. L’Allier alleges that he was prejudiced as a result of the district court’s denial of his severance motion because the jury was confused by the joinder and was unable to separate the evidence relevant to each robbery. Because the evidence against him was much stronger on the April 22, 1985 armed robbery (count II) than on the October 29, 1984 robbery (count I), L’Allier argues that he would not have been convicted on count I if the two counts had been severed and tried separately.
Rule 14 authorizes a district court to sever offenses if joinder would be prejudicial to either party. See, e.g., United States v. Shearer, 606 F.2d 819, 820 (8th Cir.1979). The decision to grant or deny a motion for severance under Rule 14 is within the discretion of the district court. The district court’s decision will not be reversed unless the party opposing the grant or denial of severance demonstrates a clear abuse of discretion. United States v. Pavelski, 789 F.2d 485, 491 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 322, 93 L.Ed.2d 295 (1986); United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985).
To obtain severance, L’Allier must show actual prejudice resulting from the joinder of counts I and II, not merely that he would have a better chance of acquittal if the counts were severed. Percival, 756 F.2d at 610; United States v. Abraham, 541 F.2d 1234, 1240 (7th Cir.1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977). L’Allier has not established actual prejudice. The trial was short, the evidence was not complex, and the chronological nature of the evidence made it relatively simple for the jury to relate the evidence to the proper count. Most of the evidence relating to count II would have been admissible in a separate trial on count I. L’Allier therefore was not prejudiced by the district court’s denial of his motion for severance. See United States v. Garver, 809 F.2d 1291, 1298 (7th Cir.1987) (defendants not prejudiced by denial of motion for severance where evidence would have been admissible in separate trials).
In addition, the jury was specifically instructed to consider the evidence relating to each count separately and to render a separate verdict on each count. “Our theory of trial relies upon the ability of a jury to follow instructions.” Percival, 756 F.2d at 610 (citing Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954)). We believe that the jury was able to follow the clear limiting instructions given by the district court in this case. We hold therefore that the district court did not abuse its discretion in denying L’Allier’s motion for severance.
V.
L’Allier’s final argument is that the district court erred when it permitted the government to introduce into evidence several sweatshirts which allegedly belonged to the defendant. L’Allier argues that it was error to admit these sweatshirts because the government was unable to establish a complete chain of custody. Clark and Willink, of the St. Croix Sheriff’s Department, found several sweatshirts when they conducted an inventory search of L’Allier’s car. The sweatshirts and the car were released to the defendant’s brother, Randy L’Allier, on July 10, 1985. An FBI agent retrieved three sweatshirts from Randy’s home (although not from Randy personally) on July 16th, but the government cannot conclusively demonstrate that the sweatshirts that were recovered were the same ones that were released to Randy on July 10th. There is therefore a break in the chain of custody.
A district court has “broad discretion to determine the admissibility of evidence.” United States v. Hattaway, 740 F.2d 1419, 1424 (7th Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984). We will not disturb a district court’s evidentia-ry ruling unless there is a clear showing of abuse of discretion. United States v. Wheeler, 800 F.2d 100, 106 (7th Cir.1986). The district court admitted the sweatshirts, but specifically limited the government to arguing only the inference that the sweatshirts the FBI agent retrieved from Randy L'Allier’s home were the same ones the St. Croix Sheriff’s Department found in the defendant’s car. The district court was correct in concluding that “any discrepancies in the chain of custody go the weight of the evidence, not its admissibility.” United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.1984). We hold that the court did not abuse its discretion in admitting the sweatshirts into evidence notwithstanding the break in the chain of custody.
VI.
In conclusion, we hold that: (1) the government’s sixteen month pre-indictment delay, although lengthy and unexplained, did not violate L’Allier’s fifth amendment right to due process because he failed to demonstrate actual and substantial prejudice to his defense as a result of the delay; (2) the district court did not abuse its discretion in permitting Rick Iverson to identify L’Allier in court; (3) counts I and II of the indictment were properly joined and the district court did not abuse its discretion by denying L’Allier’s motion to sever these offenses; and (4) the district court did not err in permitting the introduction of several sweatshirts into evidence notwithstanding a break in the chain of custody. We therefore affirm L’Allier's conviction in all respects.
. To create “bait" bills the government simply records the serial number of each bill. The bait bills are given to the bank and the tellers are instructed to dispense them in the event of a robbery. When the bills are recovered from a suspect, the government can trace them to the bank by comparing their serial numbers with the list of prerecorded serial numbers.
. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Marion, 404 U.S. at 323, 92 S.Ct. at 465 (quoting Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970)).
. The applicable statute of limitations is set forth in 18 U.S.C. § 3282 which provides:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.
L’Allier was indicted two years after the first robbery, well within the five year statute of limitations.
. The test for determining whether, based on the totality of the circumstances, an identification is reliable notwithstanding an impermissi-bly suggestive confrontation procedure was set forth in Biggers. The Court in Biggers stated that:
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.
. In fact, as Iverson testified on cross-examination, he was unable to make a positive identification of L’Allier from the photo display. Iver-son’s inability to identify L’Allier from the photo line-up is relevant to the credibility of his in-court identification, not to its admissibility. Briggs, 700 F.2d at 413. The credibility of Iver-son’s identification was thus a question of fact properly left to the jury’s consideration.
. Our conclusion that the photo line-up was not impermissibly suggestive is further supported by the fact that Iverson originally pointed to another photograph and indicated that the individual had a nose similar to the person he had seen outside the bank. Iverson then tentatively identified L’Allier’s photograph, but he indicated that he needed to see the individual in person in order to make a positive identification. Iverson clearly testified to these facts on cross-examination.
. Rule 14 provides:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice re-quires____
Fed.R.Crim.P. 14 (emphasis added).
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_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
AMIESITE ASPHALT CO. OF AMERICA v. INTERSTATE AMIESITE CO. (two cases).
Nos. 4937, 4938, 5415.
Circuit Court of Appeals, Third Circuit.
Sept. 19, 1934.
Charles J. Hepburn, of Philadelphia, Pa., and Caleb S. Layton and Hugh M. Morris, both of Wilmington, Del., for appellant.
Ayres J. Stoekly, of Wilmington, Del. (Henry N. Paul, Frank B. Fox, and John H. Austin, all of Philadelphia, Pa., of counsel), for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. .
BUFFINGTON, Circuit Judge.
In the court below the incorporated Amie-site Asphalt Company of America, hereafter called plaintiff, brought suit against the incorporated Interstate Amiesite Company, hereafter called defendant, charging the latter with wrongfully using the trade-name or trade-mark “Amiesite,” and prayed injunctive relief. Subsequently defendant made a counterclaim, charging plaintiff with oppressive and wrongful conduct in alleged -intimidation of its customers, and also sought injunctive relief. During the pendency of the ease, the court granted the order prayed for by defendant and enjoined plaintiff, during the continuance of the case, from so acting. Thereupon plaintiff took an appeal to this court. After hearing such appeal, this court, on, being advised the main ease had been heard on final opinion, and that the trial judge would shortly file his opinion, held the appeal in abeyance to await the judge’s decision. Thereafter such opinion was filed, and in pursuance thereof a final decree was entered dismissing the plaintiff’s bill. Thereupon an appeal was taken by plaintiff. It will thus appear that, if the final decree of the court bo affirmed, the appeal of plaintiff from the grant of the preliminary injunction becomes moot. Accordingly, we address ourselves to the plaintiff’s controlling appeal from tbo decree dismissing its bill.
From the proofs it appears that Dr. Joseph Hay Amies had for some years prior to 1908 and 1909 carried on experiments in material for road building. His experiments finally resulted in a composition of ingredients which, after being subjected to certain treatment, could be transported to a roadbed and “laid cold.” Under pressure, the mixture hardened and made a firm and durable road. To protect his invention, I)r. Amies, on February 20, 1909, applied for, and on September 21, 1909, was granted, patent No. 931,494 for “composition for paving purposes.” Shortly thereafter he applied for soxno six other patents which concerned minor improvements of his above-patented eoxnposition for paving purposes. These patents were acquired by the predecessor of plaintiff and subsequently by plaintiff. Bolh such companies were holding companies which did no manufacturing and built up no manufacturing or selling business of their own; their business being confined to licensing, manufacturing, and selling companies under the cited patents. In addition to the patents, and to further protect Dr. Amies’ invention, an application was on January 23,1909, made by the Amies Asphalt Company, the assignee of the patent, for trade-mark of the word “Amiesite,” which was registe! od on November 2, 1909y to the Amies Asphalt Company under the number 75658. Such application was under oath and in compliance with the statutory requirement that “'the length of time during which the trade-mark has been used,” shall be included in the application. It was therein stated that “Ihe trade-mark 1ms been continuously used since December 16th, 1908.” The application contained the word “Amiesite” in script with a dash thereunder. Subsequently thereto, defendant, using as pa.it of its corporate name the word “Amie-site,” namely, the Interstate Amiesite Company, was duly licensed by the then owner of the Amies patents to make and sell the invention thereof in certain states, and recited in said license was the statement that the licensee has the right to use certain patents in the manufacture of Amiesite in the territory thereinafter described. In pursuance thereof, defendant built up a largo business in making and selling the patented article! which the trade, the plaintiff, and defendant called Amiesite. Pursuant to such license, defendant paid the patent owners over $400,000 in royalties therefor. In point of fact, the Amies patent expired in 1926, but neither ihe public nor defendant seem to have realized that fact, and defendant continued to pay royalties thereon to and including 1930. Thereafter defendant allowed its license to expire and continued to make and sell Amie-site. For so doing, and to stop further sale by defendant, plaintiff brought this bill.
At this point we note that all of the matters above stated are facts, and while, as we hereafter state, there aro other matters ■which it is contended, modify such facts or warrant certain modifying inferences to be drawn therefrom, yet, after all, the facts above stated still remain proven, namely, the date of the patenting of Dr. Amies’ invention; the fact of its being patented; the date and statement of the use of the word “Amie-site”; the fact that such patented invention and trade-name wore licensed to defendant under its name of an Amiesite Company, to wit, the Interstate Amiesite Company, and large royalties paid based on the tonnage of Amiesite produced; and that, in building up such business, plaintiff continuously asserted Amiesite was made in pursuance of the patent granted therefor. Such being the case, the court held the principle stated by this court in Yale & Towne Mfg. Co. v. Ford, 203 F. 707, 709, and by the Supreme Court in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 S. Ct. 1002, 41 L. Ed. 118, applied, and consequently held that, at the expiration of the patent for Amiesite, the monopoly ended, and, with the vesting in the public of the x-ight to use the invention, there also pa.ssed a right to use the word “Amiesite” to designate and describe the product of such, expired invention. Indeed, the case in hand is even stronger than the Singer Case. In that case Juno had no connection with the Singer Company during the life of the patent; Singer was the sole maker and seller, and alone made the name “Singer” valuable. In the present case the defendant was the sole maker and seder, and its ads built up and gave value to the patented product and the name “Amie-site.” Moreover, not only did it so make, sell, and popularize the product and name “Amiesite,” but both in its incorporation and its operations, by its own name, “the Interstate Amiesite Company,” it had the consent and approval of plaintiff as being an Amiesite Company. It will thus be seen that, over and above the right of the public to use both invention and name of the patented product when the patent monopoly ceased, which any one would have under the Singer Case, the defendant, as plaintiff’s licensee and its representative in building up the business, had special equities as against plaintiff .which June, an entire stranger to Singer, did not have. So also the present case presents stronger facts than that of Yale v. Ford, supra, decided in this circuit. At risk of repetition, we repeat the reasoning there set forth:
“To us it is clear the commercial value o C a patent is the creation of a public desire for its product. And if the invention is such that' its product has acquired a distinctive name, then the public, when its time of enjoyment comes, cannot enjoy to the full the freed invention, unless coupled thereto is the right to use the name by which alone the invented article is known. Nor is there injustice in this, for, when the real situation is analyzed, it will be seen that by enjoying the monopoly of his patent for a series of years the patentee impliedly agrees, as maker and seller of the invented article, that, when his patent expires, he will not only surrender to the public the mechanical right to duplicate the article, but also the distinctive name the public has appropriated to the patented article; for it is apparent that the public cannot use the invention to the full without having the incidental right to vend its product by the distinctive name which the public has given it. In other words, taking this case, the public cannot now enjoy an untrammeled right to make the Triplex block of the seventeen-year monopoly, unless it has the incidental right of saying we now make and sell a Triplex block. Any other construction would make the patent a mere incident to trade-names, and would nullify the basis which alone justifies the grant of patented rights, namely, the right, on the expiration of the patent, to the full commercial use of the freed invention. For illustration, suppose that Benjamin Franklin had for seventeen years made his stoves under a patent, and that during that time these stoves had come to be-known as Franklin stoves. Can there be any doubt that when a foundryman, at the expiration of the patent, wanted to manufacture and sell such stoves, that he could not call them Franklin stoves, and mark them and sell them as Franklin stoves? If he could not, the invention would be of diminished practical use, and the monopoly of the patent measurably retained by the patentee. The consideration which the public enjoys in return for the patent only begins when the patent expires, but, when it does expire, the invention and the designation by which, as a patented article, it has become known, passes into the general public right, subject, of course, to the limitation that the person who uses it shall so act as not to lead the public to believe that when buying such article they are buying one made by some other person, including, of course, the patentee.”
Moreover, the present ease involves no confusion of goods or unethical conduct. The case is devoid of any proof either -that defendant represented its product as that of plaintiff or that the public has been in any way misled. At the termination of its license, defendant simply went on to make and sell Amiesite as it had always done, save in one safe-guarding precaution, namely, it ceased using the word “Amiesite” in script form with an underlying dash, and began using block letters on its signs, contracts, bids, and literature. Such being the law on the facts stated, it follows the court below rightly decided the case, unless there were facts to take the ease out of the general principle above stated. This plaintiff sought to do on two grounds, one that the expiration of the patents had no effect on the use of the registered trade-mark “Amiesite”; the other that, before the patents were granted or the name registered, plaintiff had used the name “Amiesite” as a trade-name. The first contention, namely, that the expiration of the patents had no effect on the use of the registered trade-mark, has been negatived in what we have set forth above. As to the second contention, namely, the use of the word “Amiesite” prior to the patents, the court below, after hearing the vast mass of testimony taken and after analyzing the same, held: “The proof overwhelmingly establishes that the exclusive use of the trade-name and the monopoly under the Amies patent were substantially contemporaneous. Patent monopoly and trade-name monopoly started and ended together.” 4 F. Supp. 504, 513. If this terse but all-embracing finding is right, it puts an end to plaintiff’s contention. After full consideration had, we find ourselves in accord with the trial court. We will not attempt to comprehensively discuss the mass of testimony the judge heard or to set forth all the reasons leading us to our conclusion, but will refer only to some of the things -which strengthen our conclusion that the judge was right in so holding.
Dr. Joseph Hay Amies, in whose name the word “Amiesite” had its origin,' experimented in material for road building. His work, and its nation-wide approval, culminated in his patent No. 934,494, noted above. His work theretofore, while extensive and educational, found vent in no invention that left any impress on road -building, but the invention disclosed in the above patent gave to the art the great contribution of a “cold mix” and indelibly linked his name, “Amies,” with his patented product, “Amiesite.” The “cold mix” invention he made was tersely but comprehensively set forth in his specification: “I place a batch quantity of broken stone, gravel, or like materials upon a mixing board or in a mixing machine and mix them with any desirable light oil. I then pour thereOn and thereover and mix well therewith a due quantity of boiling asplialt or other like elements suitable for paving compositions. I then throw thereon and mix therewith a due amount of air slaked lime or crushed carbonate of lime or a mixture of these to cover the individual particles of the said composition, and thus form a granular and friable mass that will adhere together and form a solid mass under pressure.”
Upon this disclosure, he made and was granted a single, simple, but inclusive claim, as follows: “The herein described method of making a composition for paving purposes which consists in taking mineral materials and the like, coating them with a light oil, then mixing them with a binder as liot asphalt, and then coating file particles of the said composition with air slaked lime, erifshed carbonate of lime, or lime powder, as fully set forth.”
Contemporaneously with the application for the patent, the application for the word “Amiesite” was made. When we consider that it is of advantage to the applicant for trade registration to carry back such use as far as he can, wo are impressed that Dr. Amies, who is now dead, when his company thus made use of his name to designate his invention which ho was then seeking to patent, would not have limited such use to 1908 unless such was the fact. Moreover, it will be apparent that, if the name “Amiesite” had been given and had been acquired in public trade so far back as 1905-, to which plaintiff now seeks to carry it, Dr. Amies would have endangered the grant of his patent because of bis invention having been in sucli public use and trade as to have acquired from this public use and dealing a distinctive trade-name so far back as 19015. In view of the statement in the application for registration that the use of the name dated to 1908; in view of the fact that Dr. Amies, who would naturally know the date, allowed his compa^ ny to so state it; and in further view of the fact that the plaintiff and its licensee, the defendant, through a long course of business development and growth, in their literature, contracts, and addresses, coupled the patent of Amiesite and the trade-name “Amiesite” as the basis of such business, in view of the fact that the name “Amiesite” nowhere occurs in print to such time, and in view of the fact that the Amies Asphalt Company, which exploited Dr. Amies’ earlier paving', in its offer to lay a sample pavement in Wilmington, Del., referred to its product as a pavement, stated its pavement is “known as Amies Asphalt Macadam,” we are of opinion that a heavy burden rests on those who assert an earlier date to establish that contention by certain and strong proof that such was the case. That burden has not been met. The adult witness who testified that in 1905 he had heard the name used in connection with a pavement laid by Dr. Amies was held by the court to be untrustworthy; and, in view of the fact that the other witness who testified to hearing the name used in 1905 was a mere boy at the time and the unlikeliness of his having the name impressed on his boyish mind, the trial court placed no dependence on plaintiff’s proofs. Without referring' to all the proofs bearing on the conduct of the plaintiff and its licensee, the defendant, in coupling the patent of Amiesite and the trade-name “Amiesite” together as a unitary fact, we refer to such expressions of the holding and the licensed plaintiff company running through a number of years. Before the Amies Amiesite patent, Dr. Amies’ company, in its bids, not only did not use the word “Amiesite,” but, on the contrary, called its product by another name, viz., “Known as Amies Asphalt Macadam.” After the Amiesite patent, the language used by plaintiff in trade is set forth at length in the court’s opinion, and is not here repeated. It suffices to say that these statements show that Amiesite was a patented product, that the first use of Amiesite was in 1909, and that the patent and the trade-name were linked together in date, subject-matter, and roadwork, for the twenty years following the grant of the Amies patent. Thus in 1930 plaintiff asserted: “The proven merits of this material have made it a leader in the field for the last twenty years and assure its continued use in ever increasing quantities.” The previous year the plaintiff, describing Amiesite as set forth in the Amies patent and the time of its first use as 1908 or 1909, said: “By this process a thick coating of asphaltic cement is congealed immediately around each stone particle. * * * Nearly twenty years have elapsed since laying tlie first Amie-site pavement in Media, Pa.” Two years before, plaintiff, after describing Amiesite, stated: “These considerations are protected in the Amies process.” Two years previously plaintiff had stated: “Dr. Joseph Hay Amies of Pennsylvania developed a process of laying asphalt pavement cold. The mixture made in accordance with this process and the pavement resulting therefrom are known as Amiesite. The first public use of Amiesite was in 1909, when a pavement was constructed by this method at Media, Pennsylvania, a town not far from Philadelphia.” Indeed, the position of the plaintiff during the life of Dr. Amies’ patent is summed up in a publicly circulated address of plaintiff’s leading officer: “However, Dr. Joseph Hay Amies did solve this problem of producing a mixture that could he shipped and laid cold, which solution he accomplished when he invented the paving mixture that, with later improvements, is now known as ‘Amiesite.’ ” In 1929' it was stated: “When this company was formed in 1923, we were working exclusively under the one Amies patent on Amiesite.”
In view of these proofs and of others that might be cited, we are of opinion that the trade-name “Amiesite” was not used before Dr. Amies’ invention, that it came into use and has been for years used as the designation of the Amies invention, and that, on the expiration of- such patent, the monopoly of product and name, under the Supreme Court’s ruling in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 S. Ct. 1002, 41 L. Ed. 118, and this court’s in Yale & Towne Mfg. Co. v. Eord, 203 F. 707, ended, and the court below rightly dismissed plaintiff’s bill. With such dismissal, the appeal from the preliminary injunction becomes moot. Accordingly, the plaintiff’s appeals are dismissed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellant, v. Charles Edward MURPHY.
No. 16388.
United States Court of Appeals Eighth Circuit.
Jan. 13, 1960.
Edward L. Scheufler, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., for appellant.
PER CURIAM.
Appeal from District Court dismissed, on motion of appellant.
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_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee.
No. 78-1663.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1979.
Decided May 30, 1979.
Rehearing and Rehearing En Banc Denied Aug. 13, 1979.
See 603 F.2d 158.
Richard F. Quiggle, Little Rock, Ark., for appellant.
Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief.
Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge.
ALBERT G. SCHATZ, United States District Judge, for the District of Nebraska, sitting by designation.
HEANEY, Circuit Judge.
Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas’s representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark. Stat.Ann. § 43-2328. We reverse and remand.
Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. No objection to the introduction of this evidence was made.
Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively.
Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), cert. denied, 429 U.S. 846, 97 5. Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas’s Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas’s sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas’s other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence.
Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. The court believed that it was without jurisdiction, however, both because Klimas’s petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Kli-mas’s petition for lack of jurisdiction, and he now appeals.
To the extent that the District Court believed that it was without jurisdiction to consider Klimas’s petition because of the United States Supreme Court’s denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner’s later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 114264 at 631 (1978).
We, therefore, turn to the more difficult question presented by this petition: whether Klimas’s pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975).
We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas’s accomplice and the prosecution’s principal witness against him, did not rise to the level of the deprivation of a constitutional right. Kli-mas’s counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court’s ruling and since no further attempts were made by Klimas’s counsel to elicit Weeks’ possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas’s constitutional rights which would justify the granting of habeas corpus relief.
We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41-1005 or § 43-2330.1, in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief.
Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff, supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975).
Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat. Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant’s previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id.
Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C., supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962).
After the Arkansas Supreme Court found that the evidence of Klimas’s seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury’s finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas’s trial. It is impossible to tell from the jury’s verdict, however, which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed.
The State, citing Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas’s sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra :
Emphasizing that tfie jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon’s constitution is firmly controlling. * * *
Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution.
Id. at 860. See also Ellingburg v. Lockhart, 397 F.Supp. 771, 776 (E.D.Ark.1975).
The question which remains is whether the state court’s failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal. The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him.
Retrial of a criminal defendant on a habitual criminal charge may be a' futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973). In this case, however, Klimas’s right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court' trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat. Ann. § 43-2328(3), in effect at the time of his trial, Klimas’s six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1,1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges. Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder, we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him.
The order dismissing Klimas’s petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ.
. Klimas’s petition was brought under 28 U.S.C. § 2254.
. Evidence introduced at Klimas’s trial indicated that Klimas and an accomplice, Arlie Weeks, burglarized the Dixie Wood Preserving Company plant near Pine Bluff, Arkansas, and stole a check made out to the Potlatch Corporation, ten walkie-talkie radios and coins from two soft-drink dispensing machines. Weeks testified that the men obtained approximately $58.00 from the machines, which they split between them.
. Ark.Stat.Ann. § 43-2328 provides:
Second or subsequent convictions — Sentence. — Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:
(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern.
(3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (IV2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years.
. These convictions, dating back to 1951, were as follows: grand larceny, sentence — two years, time served — one year; burglary and stealing, sentence — two consecutive two-year terms, time served — two and one-half years; three counts of stealing, sentence — three four-year concurrent terms, time served — more than two years; two counts of robbery, sentence— two concurrent eight-year terms, time served— four and one-half years.
. The February 12, 1972, crime involved theft of two television sets, some clothing and a shotgun from a house after entering through an unlocked garage door. The February 21, 1972, crime involved the theft of cigarettes, an undisclosed amount of money and personal property from an open truck. The February 26, 1972, crime involved the theft of approximately $150.00 from a tavern’s vending machines.
. The District Court stated:
THE COURT: I wish I could find some reason to give this petition consideration. It seems to me like its almost a tentative action taken by the state court on the charge of this nature — forty-two years under Arkansas law. But this Court has no right to disturb the decision of the state court.
******
THE COURT: Well, I simply don’t know if this Court can do anything about it on the charges you bring. The record on which you rely is that the state court sentenced you under the provisions of law. The Supreme Court of Arkansas heard — was in the process of remanding it for you to have a reduction to three years. What was the charge that you were being tried for here?
[MR. KLIMAS]: Burglary and larceny, your Honor.
THE COURT: Were all cases that you’ve been involved burglary and larceny?
[MR. KLIMAS]: Yes, sir.
THE COURT: And you just contend that the Court was in error in presenting it to the jury wherein you were convicted. Unless there’s some showing of [a] constitutional right being violated, this Court just doesn’t have any jurisdiction over the matter. * *
Then you say that the Court was in error contrary to federal law in not reversing the original conviction, with orders to grant a new trial. Well, what you say here is the Supreme Court of Arkansas was wrong, when on a rehearing it modified its previous decision. And that certainly is not a constitutional question here.
I have a great deal of feeling about this because of the sentence. I know the state court probably was trying to carry out the state law and I would suspect that the Supreme Court had in mind that that was a terrible sentence to impose upon .you, and it was looking for some reason to do something about it. * * *
I wish I could suggest some action for you to take to try to do something about this rather severe sentence under Arkansas law. * *
******
THE COURT: Well, I sure would make a pitch before the Parole Board, is about all I can suggest to you. I am sorry I can’t do anything for you under the circumstances.
An order will be entered accordingly dismissing the petition for lack of jurisdiction. 1 hope you will find another reason that you can get some relief anyway.
[MR. KLIMAS]: Thank you, your Honor. Transcript of Proceedings before the Honorable Oren Harris, United States Senior District Judge, May 10, 1978, at 6-9.
. The State conceded below that Klimas has exhausted his state remedies, and no claim to the contrary is made in the briefs before us. In any event, the federal rule that a state prisoner’s state-court remedies must be exhausted before federal habeas corpus relief will lie is based on principles of comity, rather than the absence of federal power. Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Where it is clear that the state courts have had an opportunity to correct the constitutional error, there has been a sufficient vindication of the state’s interests and the federal courts should proceed to entertain the § 2254 proceeding. Cage v. Auger, supra at 1232-1233. We are satisfied that the substance of Klimas’s claims, concerning the restriction of the cross-examination of his accomplice and the imposition of his forty-two year sentence by the Arkansas Supreme Court, have been fairly considered by the Arkansas courts and that no purpose would be served by their presentation once again to the state courts. See Wolfs v. Britton, 509 F.2d 304, 308 (8th Cir. 1975).
. At the time of Klimas’s trial on April 23, 1975, trial of habitual criminal charges was governed by Ark.Stat.Ann. § 43-2330.1. An extensive revision of the Arkansas Criminal Code was passed by the Arkansas legislature in 1975 and became effective on January 1, 1976. Under the new Criminal Code, the procedure for imposing an extended sentence on a person found to be a habitual offender is set forth in Ark.Stat.Ann. § 41-1005. This section is taken, almost verbatim, from the previous section. Although the new Criminal Code did not explicitly repeal § 43-2330.1, the “Compiler’s Notes” following § 43-2330.1 state that “[t]his section, or portions thereof, may have been impliedly repealed by the Criminal Code of 1976.” See Notes by the Arkansas Statute Revision Commission, 4A Arkansas Statutes 1947 Annotated, at p. 316.
. The definition of a habitual offender and the terms of imprisonment which may be imposed upon habitual offenders are found in Ark.Stat. Ann. § 41-1001 (effective January 1, 1976). The prior provision, which was in effect at the time of Klimas’s trial, is found in Ark.Stat.Ann. § 43-2328.
. This case is, therefore, distinguished from those cases where all of the prior convictions submitted to the jury were necessary to support the jury’s findings. See, e. g., Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972) (evidence of two prior felony convictions submitted to the jury; defendant sentenced by the jury as a “third offender”).
. The fact that an accused does not submit evidence contradicting that submitted by the prosecution does not, of course, eliminate the accused’s right to a jury trial. Where a statutory right to trial by jury exists, that right must be honored, “regardless of the heinousness of the crime charged [or] the apparent guilt of the offender * * Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968).
. In Cox v. Hutto, 589 F.2d 394 (8th Cir., 1979), we held that the failure of the state trial judge to inquire into Cox’s knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox’s sentence. Cox’s right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue.
. Ark.Stat.Ann. § 41-1001 states:
Sentence to imprisonment for felony — Extended term for habitual offender. — (1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows:
(a) not less than ten (10) years nor more than fifty (50) years, or life, if the conviction is of a class A felony;
(b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony;
(c) not less than three (3) years nor more than fifteen (15) years, if the conviction is of a class C felony;
(d) not exceeding seven (7) years, if the conviction is of a class D felony;
(e) upon conviction of an unclassified felony punishable by less than life imprisonment, not less than three (3) years more than the minimum sentence for the unclassified offense nor more than five (5) years more than the maximum sentence for the unclassified offense;
(f) upon conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life.
# * # # # #
(3) For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to the effective date [January 1, 1976] of this Code shall be considered a previous felony conviction or finding of guilt.
Under the new Arkansas Criminal Code, burglary is a class B felony, and larceny is a class B or C felony. See Ark.Stat.Ann. §§ 41-2002, 41-2203.
Consideration of a burglary and the felony that was the object of the burglary as a single felony conviction for the purposes of the Habitual Criminal Act was instituted to prevent the precise situation which we find here:
Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes.
Arkansas Statute Revision Commission, “Commentary," 4 Arkansas Statutes 1947 Annotated, at p. 123.
. Section 41-102 of the Arkansas Criminal Code of 1975 provides:
Application of provisions. — (1) The provisions of this Code * * * shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof.
(2) Unless otherwise expressly provided, the provisions of this Code shall govern the prosecution for any offense defined by a statute not part of this Code and committed after the effective date hereof.
(3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense.
(4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. * * *
(5) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof pri- or to the effective date of the amending or repealing act.
It is unclear, under this section, whether a charge of habitual criminality is an “offense” and, if so, whether its “commission” in a case such as this would be at the time of the commission of the latest underlying felony (here, prior to the effective date of the Code) or at the time that an individual’s status as a habitual criminal is determined (here, at the time of the retrial of the habitual criminal charge). It is also unclear whether the fact that burglary and the larceny which was its object are considered to be a single offense under the new provisions of the Habitual Criminal Act could be argued to the jury in a retrial of Klimas under the old law, as a mitigation of his record and the degree of habitual criminality which the jury might find.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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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.
WIGGINS v. SMITH, WARDEN, et al.
No. 02-311.
Argued March 24, 2003
Decided June 26, 2003
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 538.
Donald B. Verrilli, Jr., argued the cause for petitioner. With him on the briefs were Ian Heath Gershengorn and Lara M. Flint.
Gary E. Bair, Solicitor General of Maryland, argued the cause for respondents. With him on the brief were J. Joseph Curran, Jr., Attorney General, and Kathryn Grill Graeff and Ann N. Bosse, Assistant Attorneys General.
Dan Himmelfarb argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertojf, Deputy Solicitor General Dreeben, and Robert J. Erickson.
Briefs of amici curiae urging reversal were filed for the American Bar Association by Alfred P Carlton, Lawrence J. Fox, David J. Kessler, and Robin M. Maher; for the Constitution Project by Virginia E. Sloan and Stephen F. Hanlon; for the National Association of Criminal Defense Lawyers et al. by David A. Reiser, Eleanor H. Smith, and Lisa B. Kemler; for the National Association of Social Workers et al. by Thomas C. Gold- stein and Amy Howe; and for Janet F. Reno et al. by Robert S. Litt, Kathleen A Behan, and John A. Freedman.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Kristofer Jorstad, A Scott Hayward, and Donald E. De Nicola, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Terry Goddard of Arizona, Ken Salazar of Colorado, Thurbert E. Baker of Georgia, Lisa Madigan of Illinois, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Larry Long of South Dakota, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Christine 0. Gregoire of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice O’Connor
delivered the opinion of the Court.
Petitioner, Kevin Wiggins, argues that his attorneys’ failure to investígate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his Sixth Amendment right to counsel. In this case, we consider whether the United States Court of Appeals for the Fourth Circuit erred in upholding the Maryland Court of Appeals’ rejection of this claim.
I
A
On September 17, 1988, police discovered 77-year-old Florence Lacs drowned in the bathtub of her ransacked apartment in Woodlawn, Maryland. Wiggins v. State, 352 Md. 580, 585, 724 A. 2d 1, 5 (1999). The State indicted petitioner for the crime on October 20,1988, and later filed a notice of intention to seek the death penalty. Two Baltimore County public defenders, Carl Schlaich and Michelle Nethercott, assumed responsibility for Wiggins’ case. In July 1989, petitioner elected to be tried before a judge in Baltimore County Circuit Court. Ibid. On August 4, after a 4-day trial, the court found petitioner guilty of first-degree murder, robbery, and two counts of theft. App. 32.
After his conviction, Wiggins elected to be sentenced by a jury, and the trial court scheduled the proceedings to begin on October 11, 1989. On September 11, counsel filed a motion for bifurcation of sentencing in hopes of presenting Wiggins’ case in two phases. Id., at 34. Counsel intended first to prove that Wiggins did not act as a “principal in the first degree,” ibid. — i. e., that he did not kill the victim by his own hand. See Md. Ann. Code, Art. 27, §413 (1996) (requiring proof of direct responsibility for death eligibility). Counsel then intended, if necessary, to present a mitigation case. In the memorandum in support of their motion, counsel argued that bifurcation would enable them to present each case in its best light; separating the two cases would prevent the introduction of mitigating evidence from diluting their claim that Wiggins was not directly responsible for the murder. App. 36-42, 37.
On October 12, the court denied the bifurcation motion, and sentencing proceedings commenced immediately thereafter. In her opening statement, Nethercott told the jurors they would hear evidence suggesting that someone other than Wiggins actually killed Lacs. Id., at 70-71. Counsel then explained that the judge would instruct them to weigh Wiggins’ clean record as a factor against a death sentence. She concluded: “ ‘You’re going to hear that Kevin Wiggins has had a difficult life. It has not been easy for him. But he’s worked. He’s tried to be a productive citizen, and he’s reached the age of 27 with no convictions for prior crimes of violence and no convictions, period.... I think that’s an important thing for you to consider.’ ” Id., at 72. During the proceedings themselves, however, counsel introduced no evidence of Wiggins’ life history.
Before closing arguments, Schlaich made a proffer to the court, outside the presence of the jury, to preserve bifurcation as an issue for appeal. He detailed the mitigation case counsel would have presented had the court granted their bifurcation motion. He explained that they would have introduced psychological reports and expert testimony demonstrating Wiggins’ limited intellectual capacities and childlike emotional state on the one hand, and the absence of aggressive patterns in his behavior, his capacity for empathy, and his desire to function in the world on the other. See id., at 349-351. At no point did Schlaich proffer any evidence of petitioner’s life history or family background. On October 18, the court instructed the jury on the sentencing task before it, and later that afternoon, the jury returned with a sentence of death. Id., at 409-410. A divided Maryland Court of Appeals affirmed. Wiggins v. State, 324 Md. 551, 597 A. 2d 1359 (1991), cert. denied, 503 U. S. 1007 (1992).
B
In 1993, Wiggins sought postconviction relief in Baltimore County Circuit Court. With new counsel, he challenged the adequacy of his representation at sentencing, arguing that his attorneys had rendered constitutionally defective assistance by failing to investigate and present mitigating evidence of his dysfunctional background. App. to Pet. for Cert. 132a. To support his claim, petitioner presented testimony by Hans Selvog, a licensed social worker certified as an expert by the court. App. 419. Selvog testified concerning an elaborate social history report he had prepared containing evidence of the severe physical and sexual abuse petitioner suffered at the hands of his mother and while in the care of a series of foster parents. Relying on state social services, medical, and school records, as well as interviews with petitioner and numerous family members, Selvog chronicled petitioner’s bleak life history. App. to Pet. for Cert. 163a.
According to Selvog’s report, petitioner’s mother, a chronic alcoholic, frequently left Wiggins and his siblings home alone for days, forcing them to beg for food and to eat paint chips and garbage. Id., at 166a-167a. Mrs. Wiggins’ abusive behavior included beating the children for breaking into the kitchen, which she often kept locked. She had sex with men while her children slept in the same bed and, on one occasion, forced petitioner’s hand against a hot stove burner — an incident that led to petitioner’s hospitalization. Id., at 167a-171a. At the age of six, the State placed Wiggins in foster care. Petitioner’s first and second foster mothers abused him physically, id., at 175a-176a, and, as petitioner explained to Selvog, the father in his second foster home repeatedly molested and raped him. Id., at 176a-179a. At age 16, petitioner ran away from his foster home and began living on the streets. He returned intermittently to additional foster homes, including one in which the foster mother’s sons allegedly gang-raped him on more than one occasion. Id., at 190a. After leaving the foster care system, Wiggins entered a Job Corps program and was allegedly sexually abused by his supervisor. Id., at 192a.
During the postconviction proceedings, Schlaich testified that he did not remember retaining a forensic social worker to prepare a social history, even though the State made funds available for that purpose. App. 487-488. He explained that he and Nethercott, well in advance of trial, decided to focus their efforts on “ ‘retrying] the factual case’ ” and disputing Wiggins’ direct responsibility for the murder. Id., at 485-486. In April 1994, at the close of the proceedings, the judge observed from the bench that he could not remember a capital case in which counsel had not compiled a social history of the defendant, explaining, “ ‘[n]ot to do a social history, at least to see what you have got, to me is absolute error. I just — I would be flabbergasted if the Court of Appeals said anything else.’” Id., at 605. In October 1997, however, the trial court denied Wiggins’ petition for postcon-viction relief. The court concluded that “when the decision not to investigate... is a matter of trial tactics, there is no ineffective assistance of counsel.” App. to Pet. for Cert. 155a-156a.
The Maryland Court of Appeals affirmed the denial of relief, concluding that trial counsel had made “a deliberate, tactical decision to concentrate their effort at convincing the jury” that appellant was not directly responsible for the murder. Wiggins v. State, 352 Md., at 608, 724 A. 2d, at 15. The court observed that counsel knew of Wiggins’ unfortunate childhood. They had available to them both the pre-sentence investigation (PSI) report prepared by the Division of Parole and Probation, as required by Maryland law, Md. Ann. Code, Art. 41, §4-609(d) (1988), as well as “more detailed social service records that recorded incidences of physical and sexual abuse, an alcoholic mother, placements in foster care, and borderline retardation.” 352 Md., at 608-609, 724 A. 2d, at 15. The court acknowledged that this evidence was neither as detailed nor as graphic as the history elaborated in the Selvog report but emphasized that “counsel did investigate and were aware of appellant’s background.” Id., at 610, 724 A. 2d, at 16 (emphasis in original). Counsel knew that at least one uncontested mitigating factor — Wiggins’ lack of prior convictions — would be before the jury should their attempt to disprove Wiggins’ direct responsibility for the murder fail. As a result, the court concluded, Schlaich and Nethercott “made a reasoned choice to proceed with what they thought was their best defense.” Id., at 611-612, 724 A. 2d, at 17.
C
In September 2001, Wiggins filed a petition for writ of habeas corpus in Federal District Court. The trial court granted him relief, holding that the Maryland courts’ rejection of his ineffective assistance claim “involved an unreasonable application of clearly established federal law.” Wiggins v. Corcoran, 164 F. Supp. 2d 538, 557 (2001) (citing Williams v. Taylor, 529 U. S. 362 (2000)). The court rejected the State’s defense of counsel’s “tactical” decision to “‘retry guilt,’” concluding that for a strategic decision to be reasonable, it must be “based upon information the attorney has made after conducting a reasonable investigation.” 164 F. Supp. 2d, at 558. The court found that though counsel were aware of some aspects of Wiggins’ background, that knowledge did not excuse them from their duty to make a “fully informed and deliberate decision” about whether to present a mitigation case. In fact, the court concluded, their knowledge triggered an obligation to look further. Id., at 559.
Reviewing the District Court’s decision de novo, the Fourth Circuit reversed, holding that counsel had made a reasonable strategic decision to focus on petitioner’s direct responsibility. Wiggins v. Corcoran, 288 F. 3d 629, 639-640 (2002). The court contrasted counsel’s complete failure to investigate potential mitigating evidence in Williams, 288 F. 3d, at 640, with the fact that Schlaich and Nethercott knew at least some details of Wiggins’ childhood from the PSI and social services records, id., at 641. The court acknowledged that counsel likely knew further investigation “would have resulted in more sordid details surfacing,” but agreed with the Maryland Court of Appeals that counsel’s knowledge of the avenues of mitigation available to them “was sufficient to make an informed strategic choice” to challenge petitioner’s direct responsibility for the murder. Id., at 641-642. The court emphasized that conflicting medical testimony with respect to the time of death, the absence of direct evidence against Wiggins, and unexplained forensic evidence at the crime scene supported counsel’s strategy. Id., at 641.
We granted certiorari, 537 U. S. 1027 (2002), and now reverse.
II
A
Petitioner renews his contention that his attorneys’ performance at sentencing violated his Sixth Amendment right to effective assistance of counsel. The amendments to 28 U. S. C. § 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), circumscribe our consideration of Wiggins’ claim and require us to limit our analysis to the law as it was “clearly established” by our precedents at the time of the state court’s decision. Section 2254 provides:
“(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
We have made clear that the “unreasonable application” prong of § 2254(d)(1) permits a federal habeas court to “grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts” of petitioner’s case. Williams v. Taylor, supra, at 413; see also Bell v. Cone, 535 U. S. 685, 694 (2002). In other words, a federal court may grant relief when a state court has misapplied a “governing legal principle” to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U. S. 63, 76 (2003) (citing Williams v. Taylor, supra, at 407). In order for a federal court to find a state court’s application of our precedent “unreasonable,” the state court’s decision must have been more than incorrect or erroneous. See Lockyer, supra, at 75. The state court’s application must have been “objectively unreasonable.” See Williams v. Taylor, 529 U. S., at 409.
We established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington, 466 U. S. 668 (1984). An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense. Id., at 687. To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” Id., at 688. We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Ibid.
In this case, as in Strickland, petitioner’s claim stems from counsel’s decision to limit the scope of their investigation into potential mitigating evidence. Id., at 673. Here, as in Strickland, counsel attempt to justify their limited investigation as reflecting a tactical judgment not to present mitigating evidence at sentencing and to pursue an alternative strategy instead. In rejecting the respondent’s claim, we defined the deference owed such strategic judgments in terms of the adequacy of the investigations supporting those judgments:
“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the cireum-stances, applying a heavy measure of deference to counsel’s judgments.” Id., at 690-691.
Our opinion in Williams v. Taylor is illustrative of the proper application of these standards. In finding Williams’ ineffectiveness claim meritorious, we applied Strickland and concluded that counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision to focus on Williams’ voluntary confessions, because counsel had not “fulfilled] their obligation to conduct a thorough investigation of the defendant’s background.” 529 U. S., at 396 (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). While Williams had not yet been decided at the time the Maryland Court of Appeals rendered the decision at issue in this case, cf. post, at 542 (Scalia, J., dissenting), Williams’ case was before us on habeas review. Contrary to thé dissent’s contention, post, at 543, we therefore made no new law in resolving Williams’ ineffectiveness claim. See Williams, 529 U. S., at 390 (noting that the merits of Williams’ claim “are squarely governed by our holding in Strickland”); see also id., at 395 (noting that the trial court correctly applied both components of the Strickland standard to petitioner’s claim and proceeding to discuss counsel’s failure to investigate as a violation of Strickland’s performance prong). In highlighting counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same “clearly established” precedent of Strickland we apply today. Cf. 466 U. S., at 690-691 (establishing that “thorough investigation[s]” are “virtually unchallengeable” and underscoring that “counsel has a duty to make reasonable investigations”); see also id., at 688-689 (“Prevailing norms of practice as reflected in American Bar Association standards and the like... are guides to determining what is reasonable”).
In light of these standards, our principal concern in deciding whether Schlaich and Nethercott exercised “reasonable professional judgmen[t],” id., at 691, is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable. Ibid. Cf. Williams v. Taylor, supra, at 415 (O’Connor, J., concurring) (noting counsel’s duty to conduct the “requisite, diligent” investigation into his client’s background). In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for “reasonableness.under prevailing professional norms,” Strickland, 466 U. S., at 688, which includes a context-dependent consideration of the challenged conduct as seen “from counsel’s perspective at the time,” id., at 689 (“[E]very effort [must] be made to eliminate the distorting effects of hindsight”).
B
1
The record demonstrates that counsel’s investigation drew from three sources. App. 490-491. Counsel arranged for William Stejskal, a psychologist, to conduct a number of tests on petitioner. Stejskal concluded that petitioner had an IQ of 79, had difficulty coping with demanding situations, and exhibited features of a personality disorder. Id., at 44-45, 349-351. These reports revealed nothing, however, of petitioner’s life history. Tr. of Oral Arg. 24-25.
With respect to that history, counsel had available to them the written PSI, which included a one-page account of Wiggins’ “personal history” noting his “misery as a youth,” quoting his description of his own background as “ ‘disgusting,’ ” and observing that he spent most of his life in foster care. App. 20-21. Counsel also “tracked down” records kept by the Baltimore City Department of Social Services (DSS) documenting petitioner’s various placements in the State’s foster care system. Id., at 490; Lodging of Petitioner. In describing the scope of counsel’s investigation into petitioner’s life history, both the Fourth Circuit and the Maryland Court of Appeals referred only to these two sources of information. See 288 F. 3d, at 640-641; Wiggins v. State, 352 Md., at 608-609, 724 A. 2d, at 15.
Counsel’s decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards that prevailed in Maryland in 1989. As Schlaich acknowledged, standard practice in Maryland in capital cases at the time of Wiggins’ trial included the preparation of a social history report. App. 488. Despite the fact that the Public Defender’s office made funds available for the retention of a forensic social worker, counsel chose not to commission such a report. Id., at 487. Counsel’s conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA) — standards to which we long have referred as “guides to determining what is reasonable.” Strickland, supra, at 688; Williams v. Taylor, supra, at 396. The ABA Guidelines provide that investigations into mitigating evidence “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences (emphasis added)); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1982) (“The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing.... Investigation is essential to fulfillment of these functions”).
The scope of their investigation was also unreasonable in light of what counsel actually discovered in the DSS records. The records revealed several facts: Petitioner’s mother was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mothér left him and his siblings aloné for days without food. See Lodging of Petitioner 54-95, 126, 131-136, 140, 147, 159-176. As the Federal District Court emphasized, any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background. 164 F. Supp. 2d, at 559. Indeed, counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless; this case is therefore distinguishable from our precedents in which we have found limited investigations into mitigating evidence to be reasonable. See, e. g., Strickland, supra, at 699 (concluding that counsel could “reasonably surmise... that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U. S. 776, 794 (1987) (concluding counsel’s limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful); Darden v. Wainuflright, 477 U. S. 168, 186 (1986) (concluding that counsel engaged in extensive preparation and that the decision to present a mitigation case would have resulted in the jury hearing £vi-dence that petitioner had been convicted of violent crimes and spent much of his life in jail). Had counsel investigated further, they might well have discovered the sexual abuse later revealed during state postconviction proceedings.
The record of the actual sentencing proceedings underscores the unreasonableness of counsel’s conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment. Counsel sought, until the day before sentencing, to have the proceedings bifurcated into a retrial of guilt and a mitigation stage. See supra, at 515. On the eve of sentencing, counsel represented to the court that they were prepared to come forward with mitigating evidence, App. 45, and that they intended to present such evidence in the event the court granted their motion to bifurcate. In other words, prior to sentencing, counsel never actually abandoned the possibility that they would present a mitigation defense. Until the court denied their motion, then, they had every reason to develop the most powerful mitigation case possible.
What is more, during the sentencing proceeding itself, counsel did not focus exclusively on Wiggins’ direct responsibility for the murder. After introducing that issue in her opening statement, id., at 70-71, Nethereott entreated the jury to consider not just what Wiggins “is found to have done,” but also “who [he] is.” Id., at 70. Though she told the jury it would “hear that Kevin Wiggins has had a difficult life,” id., at 72, counsel never followed up on that suggestion with details of Wiggins’ history. At the same time, counsel called a criminologist to testify that inmates serving life sentences tend to adjust well and refrain from further violence in prison — testimony with no bearing on,whether petitioner committed the murder by his own hand. Id., at 311-312. Far from focusing exclusively on petitioner’s direct responsibility, then, counsel put on a halfhearted mitigation case, taking precisely the type of “ ‘shotgun’ ” approach the Maryland Court of Appeals concluded counsel sought to avoid. Wiggins v. State, 352 Md., at 609, 724 A. 2d, at 15. When viewed in this light, the “strategic decision” the state courts and respondents all invoke to justify counsel’s limited pursuit of mitigating evidence resembles more a post hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing.
In rejecting petitioner’s ineffective assistance claim, the Maryland Court of Appeals appears to have assumed that because counsel had some information with respect to petitioner’s background — the information in the PSI and the DSS records — they were in a position to make a tactical choice not to present a mitigation defense. Id., at 611-612, 724 A. 2d, at 17 (citing federal and state precedents finding ineffective assistance in cases in which counsel failed to conduct an investigation of any kind). In assessing the reasonableness of an attorney’s investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming Schlaich and Nethercott limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy. 466 U. S., at 691.
The Maryland Court of Appeals’ application of Strickland’s governing legal principles was objectively unreasonable. Though the state court acknowledged petitioner’s claim that counsel’s failure to prepare a social history “did not meet the minimum standards of the profession,” the court did not conduct an assessment of whether the decision to cease all investigation upon obtaining the PSI and the DSS records actually demonstrated reasonable professional judgment. Wiggins v. State, 352 Md., at 609, 724 A. 2d, at 16. The state court merely assumed that the investigation was adequate. In light of what the PSI and the DSS records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible. The Court of Appeals’ assumption that the investigation was adequate, ibid., thus reflected an unreasonable application of Strickland. 28 U. S. C. § 2254(d)(1). As a result, the court’s subsequent deference to counsel’s strategic decision not “to present every conceivable mitigation defense,” 352 Md., at 610, 724 A. 2d, at 16, despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable. As we established in Strickland, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U. S., at 690-691.
Additionally, the court based its conclusion, in part, on a clear factual error — that the “social service records... recorded incidences of... sexual abuse.” 352 Md., at 608-609, 724 A. 2d, at 15. As the State and the United States now concede, the records contain no mention of sexual abuse, much less of the repeated molestations and rapes of petitioner detailed in the Selvog report. Brief for Respondents 22; Brief for United States as Amicus Curiae 26; App. to Pet. for Cert. 175a-179a, 190a. The state court’s assumption that the records documented instances of this abuse has been shown to be incorrect by “clear and convincing evidence,” 28 U. S. C. § 2254(e)(1), and reflects “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). This partial reliance on an erroneous factual finding further highlights the unreasonableness of the state court’s decision.
The dissent insists that this Court’s hands are tied, under § 2254(d), “by the state court’s factual determinations that Wiggins’ trial counsel ‘did investigate and were aware of [Wiggins’] background,’” post, at 550. But as we have made clear, the Maryland Court of Appeals’ conclusion that the scope of counsel’s investigation into petitioner’s background met the legal standards set in Strickland represented an objectively unreasonable application of our precedent. § 2254(d)(1). Moreover, the court’s assumption that counsel learned of a major aspect of Wiggins’ background, i. e., the sexual abuse, from the DSS records was clearly erroneous. The requirements of § 2254(d) thus pose no bar to granting petitioner habeas relief.
2
In their briefs to this Court, the State and the United States contend that counsel, in fact, conducted a more thorough investigation than the one we have just described. This conclusion, they explain, follows from Schlaich’s post-conviction testimony that he knew of the sexual abuse Wiggins suffered, as well as of the hand-burning incident. According to the State and its amicus, the fact that counsel claimed to be aware of this evidence, which was not in the social services records, coupled with Schlaich’s statement that he knew what was in “other people’s reports,” App. 490-491, suggests that counsel’s investigation must have extended beyond the social services records. Tr. of Oral Arg. 31-36; Brief for United States as Amicus Curiae 26-27, n. 4; Brief for Respondents 35. Schlaich simply “was not asked to and did not reveal the source of his knowledge” of the abuse. Brief for United States as Amicus Curiae 27, n.
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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songer_weightev
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Thomas JACKSON, Jr., Plaintiff-Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
No. 86-7130
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Oct. 15, 1986.
James A. Turner, Turner, Turner & Turner, P.C., Tuscaloosa, Ala., for plaintiff-appellant.
Frank W. Donaldson, U.S. Atty., Jenny L. Smith, Asst. U.S. Atty., Birmingham, Ala., for defendant-appellee.
Before FAY, ANDERSON and ED-MONDSON, Circuit Judges.
PER CURIAM:
Thomas Jackson, Jr. appeals from the judgment of the district court affirming the denial by the Secretary of Health and Human Services of his claim for Social Security disability benefits and supplemental security income. Because the Secretary made an error of law in deciding whether to consider Jackson’s complaints of pain, we reverse.
I. BACKGROUND
Jackson is a thirty-three year old man who was bom with polio. He has an eleventh grade education. Jackson alleged that he became disabled on September 30, 1983, due to weakness in his right leg and pain in both his feet. During the previous year, Jackson had been employed as a janitor in a factory. Prior to that, he had worked for a year with a county road department doing highway repairs. He had earlier worked for five years as a link belt operator in a pipe manufacturing plant. Before he worked in the pipe factory, Jackson had worked for a year as a laborer in a yam mill.
The only medical evidence with regard to the alleged disabling condition in the record is a report by Dr. Blair R. Behringer, a board-certified orthopedic surgeon, who examined Jackson on June 5, 1984. Dr. Beh-ringer noted that Jackson had had polio as a child and that he had twice had surgery on his left leg. He noted that Jackson walks with a cane. Behringer stated that Jackson “is neurologically and functionally intact except for his lower right extremity.” Administrative Record at 130. Dr. Behringer concluded that Jackson had an 85% impairment of his lower right extremity, which equated to a 35% impairment of the whole person. Id.
The Administrative Law Judge (“ALJ”) found that the medical evidence established that Jackson had “severe residuals of poliomyelitis involving the right leg,” but that he did not have an impairment or combination of impairments equal to one listed in Appendix 1. Id. at 13. The AU also found that Jackson’s complaints of pain were not supported by the AU’s observations of Jackson or the medical evidence of record and were not credible. Id. The AU concluded that Jackson had a residual functional capacity to perform light work.
The AU noted that Jackson’s job as a link belt operator required periods of sitting and required a residual functional capacity for no more than light work. He denied Jackson’s claim because he found that Jackson’s impairment did not prevent him from performing his past relevant work as a link belt operator.
II. DISCUSSION
Under the Social Security Act, Jackson bore the burden of proving that he could no longer perform his past relevant work. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.1986). If a Social Security claimant “can still do [the] kind of work” he has done in the past, he will be found not disabled. 20 C.F.R. §§ 404.1520(e), 416.-920(e) (1986). If the claimant cannot perform his past work, the burden shifts to the Secretary to prove that other work exists in the national economy which the claimant can perform. 20 C.F.R. §§ 404.-1520(f), 416.920(f) (1986). See Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir.1985).
Jackson contends that the AU erred in finding that Jackson could perform his past relevant work as a link belt operator. The AU found that Jackson was restricted in climbing and descending stairs. The AU also noted that Jackson’s job at the pipe manufacturing factory required him to climb and descend stairs. Because his job as a link belt operator required such activity, Jackson argues that the AU was inconsistent in finding both that the condition of his right leg prevented him from climbing and descending stairs and also that he could perform his past relevant work as a link belt operator.
The regulations require that the claimant not be able to perform his past kind of work, not that he merely be unable to perform a specific job he held in the past. 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986). “A claimant makes a prima facie showing of disability only by establishing ‘that he is unable to return to his former type of work.’ ” Pelletier v. Secretary of HEW, 525 F.2d 158, 160 (1st Cir.1975) (emphasis in First Circuit opinion) (citations omitted). A claimant has to “show an inability to return to her previous work (i.e., occupation), and not simply to her specific prior job.” DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir.1983). See also Jock v. Harris, 651 F.2d 133, 135 (2d Cir.1981).
This circuit has not previously made the distinction between past relevant work and specific prior jobs. We follow the First, Second, and Fourth Circuits in holding that a claimant must demonstrate an inability to return to the previous type of work he was engaged in. Although Jackson showed that he could not perform his past job as a link belt operator at the pipe manufacturing factory, he did not demonstrate that he could not perform such jobs in general because he did not show that climbing and descending stairs is generally a requisite of such jobs. Thus, Jackson failed to carry his burden under the statute. Because there has been until now no precedent in this circuit on this issue and Jackson may have been unaware of the type of proof necessary to satisfy his burden, and because we are remanding this case to the Secretary on other grounds, we hold that on remand Jackson should be given an opportunity to present evidence that he cannot perform the type of work he previously engaged in.
Jackson also contends that it is inconsistent for the ALJ to find that he suffers from an impairment which significantly limits his ability to perform some basic work activities and also to find that he can perform his past relevant work. This argument is meritless. See Sewell v. Bowen, 792 F.2d at 1068 n. 3. A finding of a severe impairment is a prerequisite to a finding of disability. However, a severe impairment is not sufficient for a finding of disability. The impairment must be equal to or worse than one of the impairments listed in Appendix 1. Alternatively, the impairment must preclude the claimant from performing his past relevant work or any other work available in the national economy. The AU found that Jackson’s past relevant work did not require the types of activities which Jackson found it difficult to perform. Thus, it was not inconsistent for the AU to find that Jackson had significant impairment and also to find that he could perform his past relevant type of work.
Jackson also challenges the AU’s decision concerning Jackson’s complaints of disabling pain. The law requires the Secretary “to consider a claimant’s subjective testimony of pain if [he] finds evidence of an underlying medical condition, and either (1) ‘objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) [that] the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.’ ” Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir.1986) (brackets in original; citation omitted).
Dr. Behringer’s report provides substantial evidence of an underlying medical condition, thus satisfying the threshold prerequisite of the above test. The AU did consider the first prong of the test, concluding that there was no medical evidence of pain. However, the AU did not consider the second alternative for satisfying the test, i.e., whether Jackson’s medical condition could reasonably be expected to give rise to the alleged pain. Because he was bound to consider this, the case must be remanded to the AU to determine whether Jackson has satisfied the second prong. Smith v. Bowen, 792 F.2d 1547, 1554 (11th Cir.1986); Mason v. Bowen, 791 F.2d at 1462. Jackson shall be afforded the opportunity to adduce evidence in this regard.
We have considered Jackson's other arguments and find them without merit.
III. CONCLUSION
We reverse the judgment of the district court with respect to the AU’s consideration of pain, affirm in all other respects, and remand for proceedings not inconsistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
. A residual functional capacity assessment was completed by a state physician and included in the record. Administrative Record at 69-72.
. Because we remand for other reasons, and because we anticipate that on remand additional medical evidence will be adduced, we find it unnecessary to review the ALJ’s conclusion that there was no objective medical evidence to confirm the severity of the pain, although we note that Dr. Behringer’s report, the only possibly relevant medical evidence, does not address it at all. We also find it unnecessary to address Jackson's assertion that the ALJ had a duty, even when claimant is represented by counsel, to develop a full medical record with respect to the pain issue, because it is clear that present counsel for Jackson sees the need for such medical evidence and will inevitably present such evidence on remand. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981); Smith v. Bowen, 792 F.2d 1547, 1554 (11th Cir.1986).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_decisiondirection
|
A
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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.
SMITH v. UNITED STATES
No. 75-1439.
Argued December 8, 1976
Decided May 23, 1977
Tefft W. Smith argued the cause and filed briefs for petitioner.
Howard E. Shapiro argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Jerome M. Feit.
Briefs of amici curiae urging reversal were filed by William D. North for the American Library Assn, et al; and by Henry R. Kaufman and Ira M. Millstein for the Association of American Publishers, Inc., et al.
Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens for Decency Through Law, Inc., as amicus curiae urging affirmance.
Me. Justice Blackmun
delivered the opinion of the Court. In Miller v. California, 413 U. S. 15 (1973), this Court rejected a plea for a uniform national standard as to what appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. Id., at 30-34. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U. S. C. § 1461 for a mailing that is wholly intrastate. The case also raises the question whether § 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards.
I
Between February and October 1974 petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United States postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of “Intrigue” magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled “Lovelace,” depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse ; and (3) a film entitled “Terrorized Virgin,” depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.
II
For many years prior to 1974 the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away “any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, paper,... picture, photograph, writing...” or to deposit in any post office within Iowa any article of that kind. Iowa Code §§ 725.5 and 725.6 (1973).
In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in Miller v. California, supra, unanimously held that a related and companion Iowa statute, § 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad. State v. Wedelstedt, 213 N. W. 2d 652. Wedelstedt, at least by implication — and we so assume — invalidated §§ 725.5 and 725.6 as well.
On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed §§ 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the 1975 Iowa Code) defined, among other things, “obscene material,” and made it “a public offense” to disseminate obscene material to minors (defined as persons “under the age of eighteen”). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 9 of c. 1267 (now § 725.9 of the 1975 Code) insured that the law would be applied uniformly throughout the State, and that no lesser governmental unit would impose more stringent regulations on obscene material.
In 1976, the Iowa Legislature enacted a “complete revision” of the State’s “substantive criminal laws.” This is entitled the “Iowa Criminal Code” and is generally effective January 1, 1978. The existing definition of “obscene mate-' rial” remains unchanged, but a new provision, § 2804 of the Criminal Code, Iowa Code Ann. (Spec. Pamphlet 1977), although limited in scope, applies by its terms to adults. It reads:
“Any person who knowingly sells or offers for sale material depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value shall, upon conviction be guilty of a simple misdemeanor.”
In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978, with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors.
Petitioner’s mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner’s criminal liability. Cf. Marks v. United States, 430 U. S. 188 (1977).
Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner’s mailings went to any nonconsenting adult or that they were interstate.
Ill
Petitioner was indicted on seven counts of violating 18 U. S. C. § 1461, which prohibits the mailing of obscene materials. He pleaded not guilty. At the start of his trial petitioner proposed and submitted six questions for voir dire The court accepted in substance and utilized the first question; this was designed to reveal whether any juror was connected with an organization devoted to regulating or banning obscene materials. The court declined to ask the other five. One of the questions made inquiry as to whether the jurors had any knowledge of contemporary community standards in the Southern District of Iowa with regard to the depiction of sex and nudity. Two sought to isolate the source of the jurors’ knowledge and their understanding of those standards. The remaining two would have explored the jurors’ knowledge of Iowa law on the subject.
At the trial the Government introduced into evidence the actual materials covered by the indictment. It offered nothing else on the issue of obscenity vel non. Petitioner did not testify. Instead, in defense, he introduced numerous sexually explicit materials that were available for purchase at “adult” bookstores in Des Moines and Davenport, Iowa, several advertisements from the Des Moines Register and Tribune, and a copy of what was then c. 725 of the Iowa Code, prohibiting the dissemination of “obscene material” only to minors. At the close of the Government’s case, and again at the close of all the evidence, petitioner moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute, proscribing only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue offended that standard.
The District Court denied those motions and submitted the case to the jury. The court instructed the jury that contemporary community standards were set by what is in fact accepted in the community as a whole. In making that determination, the jurors were entitled to draw on their own knowledge of the views of the average person in the community as well as the evidence presented as to the state law on obscenity and as to materials available for purchase. App. 22-23.
The jury found petitioner guilty on all seven counts. He was sentenced to concurrent three-year terms of imprisonment, all but three months of which were suspended, and three years’ probation.
In his motion for a new trial, petitioner again asserted that Iowa law defined the community standard in a § 1461 prosecution. In denying this motion, the District Court held that § 1461 was “a federal law which neither incorporates nor depends upon the laws of the states,” App. 33; the federal policy was simply different in this area. Furthermore, the court observed, Iowa’s decision not to regulate distribution of obscene material did not mean that the people of Iowa necessarily “approve[d] of the permitted conduct,” ibid.; whether they did was a question of fact for the jury. The court rejected petitioner’s argument that it was error not to ask the jurors the question about the extent of their knowledge of contemporary community standards. It held that the jurors were entitled to draw on their own knowledge; voir dire on community standards would be no more appropriate than voir dire on the jurors’ concept of “reasonableness.” The court refused to hold that the Government was required to introduce evidence on a community standard in order to sustain its burden of proof. The materials introduced “can and do speak for themselves.” Id., at 34. The court did not address petitioner’s vagueness point.
The United States Court of Appeals for the Eighth Circuit, by per curiam opinion, agreed with the District Court that the questions submitted by petitioner on community standards, except for the first, were impermissible, since they concerned the ultimate question of guilt or innocence rather than juror qualification. The court noted, however, that it was not holding that no questions whatsoever could be asked in that area. With respect to the effect of state law, the court held that the issue of offense to contemporary community standards was a federal question, and was to be determined by the jury in a federal prosecution. The court noted the admission of Iowa’s obscenity statute into evidence but stated that this was designed to give the jury knowledge of the State’s policy on obscenity when it determined the contemporary community standard. The state policy was not controlling, since the determination was for the jury. The conviction, therefore, was affirmed.
We granted certiorari in order to review the relationship between state legislation regulating or refusing to regulate the distribution of obscene material, and the determination of contemporary community standards in a federal prosecution. 426 U. S. 946 (1976).
IV
The “basic guidelines” for the trier of fact in a state obscenity prosecution were set out in Miller v. California in the form of a three-part test:
“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest... ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24 (citations omitted).
In two companion cases, the Court held that the Miller standards were equally applicable to federal legislation. United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 129-130 (1973) (importation of obscene material, 19 U. S. C. § 1305 (a)); United States v. Orito, 413 U. S. 139, 145 (1973) (movement of obscene material in interstate commerce, 18 U. S. C. § 1462). In Hamling v. United States, 418 U. S. 87 (1974), it held, specifically, that the Miller standards applied in a § 1461 prosecution.
The phrasing of the Miller test makes clear that contemporary community standards take on meaning only when they are considered with reference to the underlying questions of fact that must be resolved in an obscenity case. The test itself shows that appeal to the prurient interest is one such question of fact for the jury to resolve. The Miller opinion indicates that patent offensiveness is to be treated in the same way. 413 U. S., at 26, 30. See Hamling v. United States, 418 U. S., at 104-105. The fact that the jury must measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked. Both in Hamling and in Jenkins v. Georgia, 418 U. S. 153 (1974), the Court noted that part (b) of the Miller test contained a substantive component as well. The kinds of conduct that a jury would be permitted to label as “patently offensive” in a § 1461 prosecution are the “hard core” types of conduct suggested by the examples given in Miller, See Hamling v. United States, 418 U. S., at 114; cf. Jenkins v. Georgia, 418 U. S., at 160-161. Literary, artistic, political, or scientific value, on the other hand, is not discussed in Miller in terms of contemporary community standards. See generally F. Schauer, The Law of Obscenity 123-124 (1976).
The issue we must resolve is whether the jury’s discretion to determine what appeals to the prurient interest and what is patently offensive is circumscribed in any way by a state statute such as c. 725 of the Iowa Code. Put another way, we must decide whether the jury is entitled to rely on its own knowledge of community standards, or whether a state legislature (or a smaller legislative body) may declare what the community standards shall be, and, if such a declaration has been made, whether it is binding in a federal prosecution under § 1461.
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 413 U. S., at 25.
Obviously, a state legislature would not be able to define contemporary community standards in a vacuum. Rather, community standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent offensiveness. In Hamling v. United States, the Court recognized the close analogy between the function of “contemporary community standards” in obscenity cases and “reasonableness” in other cases:
“A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a'reasonable’ person in other areas of the law.” 418 U. S., at KFH05.
It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness, if it were even possible for such a definition to be formulated.
This is not to say that state legislatures are completely foreclosed from enacting laws setting substantive limitations for obscenity cases. On the contrary, we have indicated on several occasions that legislation of this kind is permissible. See Hamling v. United States, 418 U. S., at 114; Miller v. California, 413 U. S., at 25. State legislation must still define the kinds of conduct that will be regulated by the State. For example, the Iowa law in effect at the time this prosecution was instituted was to the effect that no conduct aimed at adults was regulated. At the other extreme, a State might seek to regulate all the hard-core pornography that it constitutionally could. The new Iowa law, which will regulate only material “depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality,” provides an example of an intermediate approach. Iowa Criminal Code § 2804.
If a State wished to adopt a slightly different approach to obscenity regulation, it might impose a geographic limit on the determination of community standards by defining the area from which the jury could be selected in an obscenity case, or by legislating with respect to the instructions that must be given to the jurors in such cases. In addition, the State might add a geographic dimension to its regulation of obscenity through the device of zoning laws. Cf. Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). It is evident that ample room is left for state legislation even though the question of the community standard to apply, when appeal to prurient interest and patent offensiveness are considered, is not one that can be defined legislatively.
An even stronger reason for holding that a state law regulating distribution of obscene material cannot define contemporary community standards in the case before us is the simple fact that this is a federal prosecution under § 1461. The Court already has held, in Hamling, that the substantive conduct encompassed by § 1461 is confined to “the sort of 'patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California.’ ” 418 U. S., at 114. The community standards aspects of § 1461 likewise present issues of federal law, upon which a state statute such as Iowa’s cannot have con-elusive effect. The kinds of instructions that should be given to the jury are likewise a federal question. For example, the Court has held that § 1461 embodies a requirement that local rather than national standards should be applied. Hamling v. United States, supra. Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Hamling v. United States, supra; Miller v. California, supra; Roth v. United States, 354 U. S. 476 (1957). Both of these substantive limitations are passed on to the jury in the form of instructions.
The fact that the mailings in this case were wholly intrastate is immaterial for a prosecution under § 1461. That statute was one enacted under Congress’ postal power, granted in Art. I, § 8, cl. 7, of the Constitution, and the Postal Power Clause does not distinguish between interstate and intrastate matters. This Court consistently has upheld Congress’ exercise of that power to exclude from the mails materials that are judged to be obscene. See, e. g., Ex parte Jackson, 96 U. S. 727, 736 (1878); Public Clearing House v. Coyne, 194 U. S. 497, 507-508 (1904) (power to exclude from the mail “information of a character calculated to debauch the public morality”); Roth v. United States, supra; United States v. Reidel, 402 U. S. 351 (1971). See also In re Rapier, 143 U. S. 110 (1892).
Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective, reactions, or the reactions of a sensitive or of a callous minority. See Miller v. California, 413 U. S., at 30. The type -of conduct depicted must fall within the substantive limitations suggested in Miller and adopted in Hamling with respect to § 1461. Cf. Jenkins v. Georgia, 418 U. S. 153 (1974). The work also must lack serious literary, artistic, political, or scientific value before a conviction will be upheld; this determination is particularly amenable to appellate review. Finally, it is always appropriate for the appellate court to review the sufficiency of the evidence. Cf. Ginzburg v. United States, 383 U. S. 463 (1966).
Petitioner argues that a decision to ignore the Iowa law will have the practical effect of nullifying that law. We do not agree. In the first place, the significance of Iowa’s decision in 1974 not to regulate the distribution of obscene materials to adults is open to question. Iowa may have decided that the resources of its prosecutors’ offices should be devoted to matters deemed to have greater priority than the enforcement of obscenity statutes. Such a decision would not mean that Iowa affirmatively desired free distribution of those materials; on the contrary, it would be consistent with a hope or expectation on the State’s part that the Federal Government’s prosecutions under statutes such as § 1461 would be sufficient for the State’s purposes. The State might also view distribution over the counter as different from distribution through the mails. It might conclude that it is easier to keep obscene materials out of the hands of minors and unconsenting adults in retail establishments than it is when a letter or package arrives at a private residence. Furthermore, the history of the Iowa law suggests that the State may have left distribution to consenting adults unregulated simply because it was not then able to arrive at a compromise statute for the regulation of obscenity.
Arguments similar to petitioner’s “nullification” thesis were made in cases that followed Stanley v. Georgia, 394 U. S. 557 (1969). In United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), the question was whether the United States constitutionally might prohibit the importation of obscene material that was intended solely for private, personal use and possession. See 19 U. S. C. § 1305 (a). Stanley had upheld the individual’s right to possess obscene material in the home, and the argument was made that this right would be virtually meaningless if the Government could prevent importation of, and hence access to, the obscene material. 413 U. S., at 126-127. The Court held that Stanley had been based on the privacy of the home, and that it represented a considered line of demarcation in the obscenity area. Id., at 127. Consequently, despite the incidental effect that the importation prohibition had on the privacy right to possess obscene material in the home, the Court upheld the statute. A similar result was reached, in the face of similar argument, in United States v. Orito, 413 U. S. 139 (1973). There, 18 U. S. C. § 1462, the statute prohibiting knowing transportation of obscene material in interstate commerce, was at issue. The Court held that Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home. 413 U. S., at 141. See also United States v. Reidel, supra.
In this case, petitioner argues that the Court has recognized the right of States to adopt a laissez-faire attitude toward regulation of pornography, and that a holding that § 1461 permits a federal prosecution will render the States’ right meaningless. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 64 (1973); United States v. Reidel, 402 U. S., at 357. Just as the individual’s right to possess obscene material in the privacy of his home, however, did not create a correlative right to receive, transport, or distribute the material, the State’s right to abolish all regulation of obscene material does not create a correlative right to force the Federal Government to allow the mails or the channels of interstate or foreign commerce to be used for the purpose of sending obscene material into the permissive State.
Even though the State’s law is not conclusive with regard to the attitudes of the local community on obscenity, nothing we have said is designed to imply that the Iowa statute should not have been introduced into evidence at petitioner’s trial. On the contrary, the local statute on obscenity provides relevant evidence of the mores of the community whose legislative body enacted the law. It is quite appropriate, therefore, for the jury to be told of the law and to give such weight to the expression of the State’s policy on distribution as the jury feels it deserves. We hold only that the Iowa statute is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Those are questions for the jury to decide, in its traditional role as factfinder. United States v. Danley, 523 F. 2d 369 (CA9 1975), cert. denied, 424 U. S. 929 (1976).
y
A. We also reject petitioner’s arguments that the prospective jurors should have been asked about their understanding of Iowa’s community standards and Iowa law, and that § 1461 was unconstitutionally vague as applied to him. The particular inquiries requested by petitioner would not have elicited useful information about the jurors’ qualifications to apply contemporary community standards in an objective way. A request for the jurors’ description of their understanding of community standards would have been no more appropriate than a request for a description of the meaning of “reasonableness.” Neither term lends itself to precise definition. This is not to preclude other more specific and less conclusory questions for voir dire. For example, it might be helpful to know how long a juror has been a member of the community, how heavily the juror has been involved in the community, and with what organizations having an interest in the regulation of obscenity the juror has been affiliated. The propriety of a particular question is a decision for the trial court to make in the first instance. In this case,, however, we cannot say that the District Court abused its discretion in refusing to ask the specific questions tendered by petitioner.
B. Neither do we find § 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly from the decisions in Hamling, Miller, Reidel, and Roth. As construed in Hamling, the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional. Roth v. United States, 354 U. S., at 492 n. 30; Miller v. California, 413 U. S., at 26 n. 9. We find no vagueness defect in the statute attributable to the fact that federal policy with regard to distribution of obscene material through the mail was different from Iowa policy with regard to the intrastate sale of like material.
VI
Since the Iowa law on obscenity was introduced into evidence, and the jurors were told that they could consider it as evidence of the community standard, petitioner received everything to which he was entitled. To go further, and to make the state law conclusive on the issues of appeal to prurient interest and patent offensiveness, in a federal prosecution under § 1461, would be inconsistent with our prior cases. We hold that those issues are fact questions for the jury, to be judged in light of the jurors’ understanding of contemporary community standards. We also hold that § 1461 is not unconstitutionally vague as so applied, and that petitioner’s proposed voir dire questions were not improperly refused.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
See also State ex rel. Faches v. N. D. D., Inc., 228 N. W. 2d 191 (Iowa 1975) (State cannot enjoin the showing of certain movies under a statute relating to the use of premises “for the purpose of lewdness,” when “lewdness” is not statutorily defined).
“Sec. 9.... In order to provide for the uniform application of the provisions of this Act relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this Act, and no municipality, county or other governmental unit within this state shall malee any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations, whether enacted before or after this Act, shall be or become void, unenforceable and of no effect upon the effective date of this Act” (July 1, 1974).
Section 1461 provides, in relevant part:
“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance;...
“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
“Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section... to be non-mailable, or knowingly causes to be delivered by mail according to the direction thereon... shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.”
Petitioner’s proposed questions were:
“1. Are any members of the panel a member of or are in sympathy with any organization which has for its purpose the regulating or banning of alleged obscene materials?
“2. Will those jurors raise their hands who have any knowledge of the contemporary community standards existing in this federal judicial district relative to the depiction of sex and nudity in magazines and books?
“(The following individual questions are requested for each juror who answers the above question in the affirmative.)
“3. Where did you acquire such information?
“4. State what your understanding of those contemporary community standards are?
“5. In arriving at this understanding, did you take into consideration the laws of the State of Iowa which regulate obscenity?
“6. State what your understanding of those laws are?” App. 8.
Despite the District Court’s failure to discuss this point, we are satisfied that petitioner adequately preserved it for appellate review. See ¶ 7 of his motion for a new trial. App. 30.
The phrase “contemporary community standards” was first used in Roth v. United States, 354 U. S. 476 (1957). See generally F. Schauer, The Law of Obscenity 116-135 (1976). The Roth Court explained the derivation and importance of the community standards test as follows:
“The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.” 354 U. S., at 488-489 (footnotes omitted).
Although expressions in opinions vacillated somewhat before coming to the position that a national community standard was not constitutionally mandated, compare Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488, and n. 10 (1962) (opinion of Harlan, J.), and Jacobellis v. Ohio, 378 U. S. 184, 195 (1964) (opinion of Brennan, J.), with Miller v. California, 413 U. S., at 30, the Court has never varied from the Roth position that the community as a whole should be the judge of obscenity, and not a small, atypical segment of the community. The only exception to this rule that has been recognized is for material aimed at a clearly defined deviant sexual group. Mishkin v. New York, 383 U. S. 502, 508 (1966). See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 56 n. 6 (1973).
See also Jacobellis v. Ohio, 378 U. S., at 191-192 (opinion of Brennan, J.); Roth v. United States, 354 U. S., at 487 n. 20; United States v. Kennerley, 209 F. 119, 121 (SDNY 1913) (L. Hand, J.) (obscenity should be determined in accordance with the “present critical point in the compromise between candor and shame at which the community may have arrived here and now”). Cf. Manual Enterprises, Inc. v. Day, 370 U. S., at 486 (opinion of Harlan, J.) (usually the elements of prurient interest and patent offensiveness will coalesce for this kind of material).
The Court in Miller gave two “plain examples” of what a state statute could define for regulation:
See also Paris Adult Theatre I v. Slaton, 413 U. S., at 64 (the States are free to adopt a “laissez-faire” policy “and drop all controls on commercialized obscenity, if that is what they prefer”); United States v. Reidel, 402 U. S. 351, 357 (1971) (nonregulation of obscenity for adults “may prove to be the desirable and eventual legislative course”).
The language of § 1461 gives no indication that Congress intended to adopt state laws relating to distribution of obscene material for purposes of the federal statute, nor does its history. See n. 12, infra. Furthermore, none of the usual reasons advanced in favor of such adoption are present here. The regulation of the mails is a matter of particular federal concern, and the nationwide character of the postal system argues in favor of a nationally uniform construction of § 1461. The Constitution itself recognizes this fact, in the specific grant to Congress
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
MOHAMAD, individually and for ESTATE OF RAHIM, DECEASED, et al. v. PALESTINIAN AUTHORITY et al.
No. 11-88.
Argued February 28, 2012
Decided April 18, 2012
Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined, and in which Scalia, J., joined except as to Part III-B. Breyer, J., filed a concurring opinion, post, p. 461.
Jeffrey L. Fisher argued the cause for petitioners. With him on the briefs were Robert J. Tolchin, Thomas C. Gold-stein, Kevin K. Russell, Pamela S. Karlan, and Nathaniel A. Tarnor.
Laura G. Ferguson argued the cause for respondents. With her on the brief were-Richard A. Hibey, Mark J. Ro-chon, Dawn E. Murphy-Johnson, Jeffrey A. Lamken, Robert K. Kry,. and Martin V. Totaro.
Curtis E. Gannon argued the cause for the United States as amicus curiae supporting affirmance. With him on the brief were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Kneedler, Douglas N. Letter, Robert M. Loeb, Lewis S. Yelin, Harold Hongju Koh, and Cameron F Kerry.
Briefs of amici curiae urging reversal were filed for Law Professors of Civil Liberties and 42 U. S. C. § 1983 by Penny M. Venetis; for the Yale Law School Center for Global Legal Challenges by Oona A. Hathaway and Jeffrey A. Meyer; for Juan Méndez by Deena R. Hurwitz; for Former U. S. Senator Arlen Specter et al. by William J. Aceves and Anthony DiCaprio; and for Joseph E. Stiglitz by Michael D. Hausfeld.
Briefs of amici curiae were filed for the American Petroleum Institute et al. by Peter B. Rutledge; for KBR, Inc., by David B. Rivkin, Jr., and Lee A. Casey; for Omer Bártov et al. by Jennifer Green, Judith Brown Chomsky, and Beth Stephens; for Juan Romagoza Arce et al. by Andrea C. Evans, Pamela M. Merchant, Natasha E. Fain, and L. Kathleen Roberts; and for Larry Bowoto et al. by Marco Simons, Richard Herz, Theresa Traber, Bert Voorhees, Lauren Teukolsky, Dan Stormer, Cindy A. Cohn, Mr. DiCaprio, Michael S. Sorgen, Ms. Chomsky, and Richard R. Wiebe.
Justice Sotomayor
delivered the opinion of the Court.
The Torture Victim Protection Act of 1991 (TVPA or Act), 106 Stat. 73, note following 28 U. S. C. § 1350, authorizes a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. We hold that the term “individual” as used in the Act encompasses only natural persons. Consequently, the Act does not impose liability against organizations.
I
Because this case arises from a motion to dismiss, we accept as true the allegations of the complaint. Ashcroft v. al-Kidd, 563 U. S. 731, 734 (2011). Petitioners are the relatives of Azzam Rahim, who immigrated to the United States in the 1970⅛ and became a naturalized citizen. In 1995, while on a visit to the West Bank, Rahim was arrested by Palestinian Authority intelligence officers. He was taken to a prison in Jericho, where he was imprisoned, tortured, and ultimately killed. The following year, the U. S. Department of State issued a report concluding that Rahim “died in the custody of [Palestinian Authority] intelligence officers in Jericho.” Dept, of State, Country Reports on Human Rights Practices for 1995, Submitted to the House Committee on International Relations and the Senate Committee on Foreign Relations, 104th Cong., 2d Sess., 1183 (Joint Committee Print 1996).
In 2005', petitioners filed this action against respondents, the Palestinian Authority and the Palestine Liberation Organization, asserting, inter alia, claims of torture and extrajudicial killing under the TVPA. The District Court granted respondents’ motion to dismiss, concluding, as relevant, that the Act’s authorization of suit against “[ajn individual” extended liability only to natural persons. Mohamad v. Rajoub, 664 F. Supp. 2d 20, 22 (DC 2009). The United States Court of Appeals for the District of Columbia Circuit affirmed on the same ground. See Mohamad v. Rajoub, 634 F. 3d 604, 608 (2011) (“Congress used the word ‘individual’ to denote only natural persons”). We granted certiorari, 565 U. S. 962 (2011), to resolve a split among the Circuits with respect to whether the TVPA authorizes actions against defendants that are not natural persons, and now affirm.
II
The TVPA imposes liability on individuals for certain acts of torture and extrajudicial killing. The Act provides:
“An individual who, under actual or apparent authority, or color of law, of any foreign nation—
“(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
“(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.” §2(a).
The Act defines “torture” and “extrajudicial killing,” §3, and imposes a statute of limitations and an exhaustion requirement, §§ 2(b), (c). It does not define “individual.”
Petitioners concede that foreign states may not be sued under the Act — namely, that the Act does not create an exception to the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. § 1602 et seq., which renders foreign sovereigns largely immune from suits in U. S. courts. They argue, however, that the TVPA does not similarly restrict liability against other juridical entities. In petitioners’ view, by permitting suit against “[a]n individual,” the TVPA contemplates liability against natural persons and nonsovereign organizations (a category that, petitioners assert, includes respondents). We decline to read “individual” so unnaturally. The ordinary meaning of the word, fortified by its statutory context, persuades us that the Act authorizes suit against natural persons alone.
A
Because the TVPA does not define the term “individual,” we look first to the word’s ordinary meaning. See FCC v. AT&T Inc., 562 U. S. 397, 403 (2011) (‘"When a statute does not define a term, we typically give the phrase its ordinary meaning” (internal quotation marks omitted)). As a noun, “individual” ordinarily means “[a] human being, a person.” 7 Oxford English Dictionary 880 (2d ed. 1989); see also, e. g., Random House Dictionary of the English Language 974 (2d ed. 1987) (“a person”); Webster’s Third New International Dictionary 1152 (1986) (hereinafter Webster’s) (“a particular person”). After all, that is how we use the word in everyday parlance. We say “the individual went to the store,” “the individual left the room,” and “the individual took the car,” each time referring unmistakably to a natural person. And no one, we hazard to guess, refers in normal parlance to an organization as an “individual.” Evidencing that common usage, this Court routinely uses “individual” to denote a natural person, and in particular to distinguish between a natural person and a corporation. See, e. g., Goodyear Dunlop Tires Operations, S. A, v. Brown, 564 U. S. 915, 924 (2011) (“For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home”).
Congress does not, in the ordinary course, employ the word any differently. The Dictionary Act instructs that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the wor[d] ‘person’ . . . included] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U. S. C. § 1 (emphasis added). With the phrase “as well as,” the definition marks “individual” as distinct from the list of artificial entities that precedes it.
In a like manner, federal statutes routinely distinguish between an “individual” and an organizational entity of some kind. See, e. g., 7 U. S. C. § 92(k) (“ ‘Person’ includes partnerships, associations, and corporations, as well as individuals”); § 511 (same); 15 U. S. C. § 717a (“‘Person’ includes an individual or a corporation”); 16 U. S. C. § 796(4) (“ ‘[P]erson’ means an individual or a corporation”); 8 U. S. C. § 1101(b)(3) (“‘[Pierson’ means an individual or an organization”). Indeed, the very same Congress that enacted the TVPA also established a cause of action for U. S. nationals injured “by reason of an act of international terrorism” and defined “person” as it appears in the statute to include “any individual or entity capable of holding a legal or beneficial interest in property.” Federal Courts Administration Act of 1992, 18 U. S. C. §§ 2333(a), 2331(3) (emphasis added).
B
This is not to say that the word “individual” invariably means “natural person” when used in a statute. Congress remains free, as always, to give the word a broader or different meaning.- But before we will assume it has done so, there must be some indication Congress intended such a result. Perhaps it is the rare statute (petitioners point to only one such example, located in the Internal Revenue Code) in which Congress expressly defines “individual” to include corporate entities. See 26 U. S. C. § 542(a)(2). Or perhaps, as was the case in Clinton v. City of New York, 524 U. S. 417, 429 (1998), the statutory context makes that intention clear, because any other reading of “individual” would lead to an “‘absurd’” result Congress could not plausibly have intended.
There are no such indications in the TVPA. As noted, the Act does not define “individual,” much less do so in a manner that extends the term beyond its ordinary usage. And the statutory context strengthens — not undermines — the conclusion that Congress intended to create a cause of action against natural persons alone. The Act’s liability provision uses the word “individual” five times in the same sentence: once to refer to the perpetrator (i. e,, the defendant) and four times to refer to the victim. See § 2(a). Only a natural person can be a victim of torture or extrajudicial killing. “Since there is a presumption that a given term is used to mean the same thing throughout a statute, a presumption surely at its most vigorous when a term is repeated within a given sentence,” Brown v. Gardner, 513 U. S. 115, 118 (1994) (citation omitted), it is difficult indeed to conclude that Congress employed the term “individual” four times in one sentence to refer to a natural person and once to refer to a natural person and any nonsovereign organization. See also § 3(b)(1) (using term “individual” six times in referring to victims of torture).
It' is also revealing that the Act holds perpetrators liable for extrajudicial killing to “any person who may be a claimant in an action for wrongful death.” § 2(a)(2) (emphasis added). “Person,” we have recognized, often has a broader meaning in the law than “individual,” see Clinton, 524 U. S., at 428, n. 13, and frequently includes nonnatural persons, see, e. g., 1 U. S. C. § 1. We generally seek to respect Congress’ decision to use different terms to describe different categories of people or things. See Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004). Our construction of “individual” to encompass solely natural persons credits Congress’ use of the disparate terms; petitioners’ construction does not.
In sum, the text of the statute persuades us that the Act authorizes liability solely against natural persons.
f — H ⅜ — l
Petitioners’ counterarguments are unpersuasive.
A
Petitioners first dispute that the plain text of the TVPA requires today’s result. Although they concede that an ordinary meaning of “individual” is “human being,” petitioners point to definitions of “individual” that “frame the term . . . in distinctly non-human terms, instead placing their emphases on the oneness of something.” Brief for Petitioners 18 (citing, e. g., Webster’s 1152 (defining “individual” as “a single or particular being or thing or group of being or things”)). Those definitions, however, do not account even for petitioners’ preferred interpretation of “individual”- in the Act, for foreign states — which petitioners concede are not liable under the Act — do not differ from nonsovereign organizations in their degree of “oneness.” Moreover, “[w]ords that can have more than one meaning are given content . . . by their surroundings,” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 466 (2001), and for the reasons explained supra, petitioners’ definition makes for an awkward fit in the context of the TVPA.
Petitioners next claim that federal tort statutes uniformly provide for liability against organizations, a convention they maintain is common to the legal systems of other nations. We are not convinced, however, that any such “domestic and international presumption of organizational liability” in tort actions overcomes the ordinary meaning of “individual.” Brief for Petitioners 16. It is true that “Congress is understood to legislate against a background of common-law adjudicatory principles.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991). But Congress plainly can override those principles, see, e. g., id., at 108-109, and, as explained supra, the TVPA’s text evinces a clear intent not to subject nonsovereign organizations to liability.
We also decline petitioners’ suggestion to construe the TVPA’s scope of liability to conform with other federal statutes that petitioners contend provide civil remedies to victims of torture or extrajudicial killing. None of the three statutes petitioners identify employs the term “individual” to describe the covered defendant, and so none assists in the interpretive task we face today. See 42 U. S. C. § 1983; 28 U. S. C. § 1603(a) (2006 ed.), § 1605A(c) (2006 ed., Supp. IV); 18 U. S. C. §§2333, 2334(a)-(b), 2337. The same is true of the Alien Tort Statute, 28 U. S. C. § 1350, so it offers no comparative value here regardless of whether corporate entities can be held liable in a federal common-law action brought under that statute. Compare Doe v. Exxon Mobil Corp., 654 F. 3d 11 (CADC 2011), with Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (CA2 2010), cert. granted, 565 U. S. 961 (2011). Finally, although petitioners rightly note that the TVPA contemplates liability against officers who do not personally execute the torture or extrajudicial killing, see, e. g., Chavez v. Carranza, 559 F. 3d 486 (CA6 2009), it does not follow (as petitioners argue) that the Act embraces liability against nonsovereign organizations. An officer who gives an order to torture or kill is an “individual” in that word’s ordinary usage; an organization is not.
B
Petitioners also contend that legislative history supports their broad reading of “individual.” But “reliance on legislative history is unnecessary in light of the statute’s unambiguous language.” Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 236, n. 3 (2010). In any event, the excerpts petitioners cite do not help their cause. Petitioners note that the Senate Report states that “[t]he legislation uses the term ‘individual’ to make crystal clear that foreign states or their entities cannot be sued under this bill under any circumstances.” S. Rep. No. 102-249, p. 7 (1991) (S. Rep.); see also H. R. Rep. No. 102-367, pt. 1, p. 4 (1991) (“Only ‘individuals,’ not foreign states, can be sued”). Yet that statement, while clarifying that the Act does not encompass liability against foreign states, says nothing about liability against nonsovereign organizations. The other excerpts petitioners cite likewise are not probative of the meaning of “individual,” for they signal only that the Act does not impose liability on perpetrators who act without authority or color of law of a foreign state. See, e. g., id., at 5 (“The bill does not attempt to deal with torture or killing by purely private groups”); S. Rep., at 8 (The bill “does not cover purely private criminal acts by individuals or nongovernmental organizations”).
Indeed, although we need not rely on legislative history given the text’s clarity, we note that the history only supports our interpretation of “individual.” The version of the TVPA that was introduced in the 100th Congress established liability against a “person.” Hearing and Markup on H. R. .1417 before the House Committee on Foreign Affairs and Its Subcommittee on Human Rights and International Organizations, 100th Cong., 2d Sess., 82 (1988). During the markup session of the House Foreign Affairs Committee, one of the bill’s sponsors proposed an amendment “to make it clear we are applying it to individuals and not to corporations.” Id., at 81, 87. Counsel explained that it was a “fairly simple” matter “of changing the word, ‘person’ to ‘individuals’ in several places in the bill.” Id., at 87-88. The amendment was unanimously adopted, and the version of the bill reported out of Committee reflected the change. Id., at 88; H. R. Rep. No. 100-693, pt. 1, p. 1 (1988). A materially identical version of the bill was enacted as the TVPA by the 102d Congress. Although we are cognizant of the limitations of this drafting history, cf. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005), we nevertheless find it telling that the sole explanation for substituting “individual” for “person” confirms what we have concluded from the text alone.
C
Petitioners' final argument is that the Act would be rendered toothless by a construction of “individual” that limits liability to natural persons. They contend that precluding organizational liability may foreclose effective remedies for victims and their relatives for any number of reasons. Victims may be unable to identify the men and women who subjected them to torture, all the while knowing the organization for whom they work. Personal jurisdiction may be more easily established over corporate than human beings. And natural persons may be more likely than organizations to be judgment proof. Indeed, we are told that only two TVPA’ plaintiffs have been able to recover successfully against a natural person — one only after the defendant won the state lottery. See Jean v. Dorélien, 431 F. 3d 776, 778 (CA11 2005).
We acknowledge petitioners’ concerns about the limitations on recovery. But they are ones that Congress imposed and that we must respect. “[N]o legislation pursues its purposes at all costs,” Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam), and petitioners’ purposive argument simply cannot overcome the force of the plain text. We add only that Congress appeared well aware of the limited nature of the cause of action it established in the Act. See, e. g., 138 Cong. Rec. 4177 (1992) (remarks of Sen. Simpson) (noting that “as a practical matter, this legislation will result in a very small number of cases”); 137 Cong. Rec. 2671 (1991) (remarks of Sen. Specter) (“Let me emphasize that the bill is a limited measure. It is estimated that only a few of these lawsuits will ever be brought”).
* * *
The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this branch to do otherwise. The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed.
It is so ordered.
Justice Scalia joins this opinion except as to Part III-B.
Respondents also argued before the District Court that the TVPA’s requirement that acts be committed under authority or color of law of a foreign nation was not met. Neither the District Court nor Court of Appeals addressed the argument, and we offer no opinion on its merits.
Compare Aziz v. Alcolac, Inc., 658 F. 3d 388 (CA4 2011) (TVPA excludes corporate defendants from liability); Mohamad v. Rajoub, 634 F. 3d 604 (CADC 2011) (TVPA liability limited to natural persons); Bowoto v. Chevron Corp., 621 F. 3d 1116 (CA9 2010) (same as Aziz), with Sinaltrainal v. Coca-Cola Co., 578 F. 3d 1252, 1264, n. 13 (CA11 2009) (TVPA liability extends to corporate defendants).
The parties debate whether estates, or other nonnatural persons, in fact may be claimants in a wrongful-death action. We think the debate largely immaterial. Regardless of whether jurisdictions today allow for such actions, Congress’ use of the broader term evidences an intent to accommodate that possibility.
Petitioners’ separate contention that the TVPA must be construed in light of international agreements prohibiting torture and extrajudicial killing fails for similar reasons. Whatever the scope of those agreements, the TVPA does not define “individual” by reference to them, and principles they elucidate cannot overcome the statute’s text. The same is true of petitioners’ suggestion that Congress in the TVPA imported a “specialized usage” of the word “individual” in international law. See Brief for Petitioners 6. There is no indication in the text of the statute or legislative history that Congress knew of any such specialized usage of the term, much less intended to import it into the Act.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_usc1
|
18
|
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. FURLONG.
No. 10429.
United States Court of Appeals Seventh Circuit.
Jan. 15, 1952.
Rehearing Denied March 4, 1952.
Frank J. McAdams, Jr., Gerald M. Chapman, Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty., Lawrence J. Miller and Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
LINDLEY, Circuit Judge.
Defendants appeal from judgments entered upon a jury’s verdicts of guilty upon Counts 1, 2 and 6 of an indictment charging them with impersonation of federal officers in violation of Section 912, Title 18 U.S.C. The issue presented to us is whether the trial judge erred in giving a supplemental instruction to the jury and in refusing to consider the affidavit of a juror in support of defendants’ amended motion for a new trial.
The case went to the jury at 11:30 a. m. At 2:30 p. m. the foreman advised the court that a hopeless deadlock existed. The court, after advising counsel of the difficulty, shortly after 3 o’clock, had the jury brought into the courtroom and submitted to it the following supplemental charge: “Although the verdict to which a juror agrees must, of course, be his own verdict — the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the - same source, from which any future jury must come; and there is no reason to suppose that the case will ever be submitted to twelve persons, twelve men and women more intelligent, more impartial, or more competent to decide it, nor that more or clearer evidence will be produced on one side or the other. With this in view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one part or the other, in all cases. In the present case, the burden of proof — the burden is upon the Government to establish the guilt of the defendants beyond a reasonable doubt, and if you are left in doubt as to the guilt of the defendants, or any one of them, such defendant or defendants is entitled to the benefit of that doubt and must be acquitted. But, in conferring together you ought to pay proper respect to each other’s opinions and reasons, with the disposition to be convinced with each other’s arguments. And, on the one hand, if much the larger number of you are for a conviction the dissenting jurors should consider whether the doubt in their own minds is a reasonable one which makes no impression upon the minds of so many men and women equally honest, and equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if the majority of you are for acquittal, the minority should equally ask themselves whether they may not reasonably and ought to doubt the correctness of the judgment which is not concurred in by a number of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellows. With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations.”
Defendants’ principal assault is upon the last sentence of the charge. That all other parts were proper is apparent from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; indeed, they were in the language approved by the court in that case. However, the concluding sentence, that the jury should continue to deliberate until it arrived at a unanimous verdict, is not within the Allen case and defendants urge that it is of such character that it must necessarily have coerced or influenced the jury.
Criminal Procedure Rule 30, 18 U.S.C. providing that no party may assign as error giving or failure to give an instruction, unless he objects thereto, stating distinctly the matter to which he objects and the grounds of his objection, has the force of law. Under it the objecting party must state specifically to what he objects and the grounds for his objection. It is a salutary rule, for its purpose is to give the judge an opportunity to make any correction which he thinks is proper and, thus, to minimize the possibility of error. Hower v. Roberts, 8 Cir., 153 F.2d 726. It is intended to prevent a litigant from taking advantage, after verdict, of the giving of an erroneous instruction to which he failed to call attention in time to afford the court an opportunity to correct it. Palmer v. Miller, 8 Cir., 145 F.2d 926. Unless the objection is made before verdict, a reviewing court is powerless to consider it; it can not be raised for the first time on motion for new trial or on appeal. Christensen v. Trotter, 9 Cir., 171 F.2d 66; Meadows v. U. S., 4 Cir., 144 F.2d 751; Atwater Kent Mfg. Co. v. U. S., D.C., 53 F.Supp. 472, affirmed, 3 Cir., 145 F.2d 374, 159 A.L.R. 1; and it must be specific; otherwise, it is not sufficient, Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645. If the objecting party does not state in the trial court before verdict, the grounds of his objections and call the attention of the trial court to the claimed error, he is deemed to have waived the right to object. Thiel v. Southern Pac. Co., 9 Cir., 149 F.2d 783, reversed on other grounds 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181.
The record in this cause discloses that when the court advised counsel that it intended to give the charge approved in the Allen case, it inquired whether either of them had any objection. Counsel for defendants said merely that he “objected.” His reasons were not stated. After the court had completed the supplemental charge, counsel for defendants made no motion, either before or after the jury retired, for opportunity to state any objection to the instruction, although the record shows that he was present and inquired as to who the foreman was. Obviously, if defendants thought that the final sentence was erroneous in that it tended to coerce the jury, they should have asked leave to object and called the court’s attention to that specific objection. Had they done so, the court could have made any correction deemed proper and avoided any possible error. By their failure to object or to ask leave to do so, defendants waived any right in this respect. The earlier general objection was not sufficient to preserve the point, as it did. not advise the court of any specific ground relied upon. Under the authorities cited, it was too late to set up a valid objection after verdict and to assign error upon it in this court.
We might observe that the record is persuasive that the jury was in no wise coerced, influenced or biased, for it reflected by its verdict careful consideration of the issues as to each defendant. Thus, one defendant was found not guilty, and, as to each of the three now appealing, the jury found them not guilty on Counts 3, 4 and 5 but guilty on Counts 1, 2 and 6. Prima facie such verdicts reflect careful consideration and a sense of discrimination by the jury and negate coercion.
Defendants take the position that the court did not require the jury to deliberate sufficiently long before giving the additional instruction. We think it is well settled that the time within which such a charge should be given is within the sound discretion of the trial- -court and that the only question here is whether that-discretion was abused. It is undisputed that the jury deliberated more than three hours before the court was advised that a hopeless deadlock existed and recalled it for a further charge; we think the record discloses no aibuse of discretion. Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; United States v. Samuel Dunkel & Co., 2 Cir., 173 F.2d 506; Culp v. United States, 8 Cir., 131 F.2d 93.
After defendants had filed their motion for new trial, they asked leave to amend it by filing an affidavit of one juror, who deposed that, after the jury had been empaneled, another juror said to the others that “we just as well might vote now as later, those fellows are guilty.” The affiant replied that she thought they “were supposed to hear some evidence.” She swore further that one of the jurors remarked that she had read in a newspaper that one of the defendants had been in trouble several times. Another juror, in the course of the proceedings, before any evidence had been submitted by defendants, said that she had made up her mind. One of the others protested that this was unusual. It will be observed that these were conversations in the jury room among the jurors during the progress of the trial. There is nothing to show that they in anywise affiected the final verdict, to which we have adverted and which, as we have said, reflects careful consideration and a sense of discretion in determining the issue as to each defendant, acquitting one entirely and finding others guilty on part of the counts and not guilty on others.
It is axiomatic that an affidavit of a juror as to what occurred in the jury room during deliberation of the jury, will not be considered, for sound public policy prohibits impeachment of a verdict by a member of the jury who participates in it. The return to the court is in fact the verdict of twelve; and an attempt by one, afterwards, to impeach it can receive no consideration. This well established doctrine is based upon sound reasoning. See Black v. United States, 5 Cir., 294 F. 828, certiorari denied 264 U.S. 580, 44 S.Ct. 330, 68 L.Ed. 859; Walsh v. United States, 7 Cir., 174 F. 615, certiorari denied 215 U.S. 609, 30 S.Ct. 409, 54 L.Ed. 347; Johnson v. Hunter, 10 Cir., 144 F.2d 565, 567. In the latter case, it was sought to show that a colored juror was intimidated by eleven white jurors. The court said: “It is evident that proof of the fact, if true, would be impossible by anyone other than the negro juror whom the petitioner seeks to have called as a witness in his behalf, and unless this negro juror is a competent witness to testify in support of the allegations contained in the sixth paragraph of the petition for the writ, no hearing was required. The general rule is that evidence of jurors is not admissible to impeach their verdict.”
In Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917, the court cited with approval the language of Justice Gray while a member of the Supreme Judicial Court of Massachusetts in Woodward v. Leavitt, 107 Mass. 453 as follows: “ ‘on a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors, as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury room, where evidence of such acts has been given as ground for a new trial.’ ” And in Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 808, 56 L.Ed. 1114, the court concluded: “We think the rule expressed in Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, and Gottleib Bros. v. Jasper & Co., 27 Kan. 770, should apply, that the testimony of jurors should not be received to show matters which essentially inhere in the verdict itself and necessarily depend upon the testimony of the jurors, and can receive no corroboration.” In Young v. United States, 10 Cir., 163 F.2d 187, 188, the court said: “It is stated in one of the affidavits that while the jury were deliberating upon their verdict, one member stated to another member that the defendants Deer and Polk were closely associated; that the defendant Polk was a bad man; that he .had shot a man and thrown his body in a river; and that for these reasons the two defendants should be convicted and imprisoned. It is stated in the other affidavit that the same member of the jury seemed to be prejudiced against the defendant Polk and said among other things that all of the defendants were in a syndicate and were guilty. * * * While recognizing that the rule may not be without exceptions, and though an exception was recognized in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, based upon considerations of sound public policy, it has been held over a long period of time that ordinarily jurors in the United States Courts will not be heard to give testimony, either oral or by affidavit, for the purpose of impeaching the verdict returned where the facts sought to be shown are such that they essentially inhere in the verdict.”
It is apparent from these authorities that where it is sought to impeach because of matters occurring within the jury room and not because of extraneous communications with the jury, affidavits of the jurors are incompetent to impeach the verdict. Thus in Wheaton v. United States, 8 Cir., 133 F.2d 522, 526, the court said: “In so far as the affidavit of any juror attempted to impeach the verdict of the jury, or related to a matter resting in his personal consciousness or to the motives or influences which affected the jury’s deliberations, the affidavit was incompetent, and it was only competent to indicate the existence of extraneous interference with the jury’s deliberations. * * * The affidavits of the jurors, submitted by the appellant, were not proof of the facts recited by the affiants. Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 6S9.”
Here the court announced that, after the affidavit had found its way into the newspapers, other jurors voluntarily expressed a desire to see the judge and to deny its averments. This, too, was immaterial, of course, but it illustrates the danger of permitting a juror to impeach the verdict because of anything inherent in it. It is not claimed in the present case that any third party attempted to interfere with the jury, or that any extraneous matter entered into its deliberation, but merely that, in the course of the conversations in the jury room, one juror said that she had heard or read about one of the defendants. Obviously that should have been disclosed by her on her voir dire when she was examined as to her qualifications as a juror and, just as obviously, if she had forgotten the incident until after she became a juror and she then recalled it, it was her duty to inform the court of her remembrance. Perhaps it is too much to expect a layman to realize his duty in this respect even though thoroughly advised by the court. Under the authorities cited, we conclude that the affidavit was incompetent and was rightfully excluded.
The judgments are 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:
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songer_procedur
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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 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.
FEDERAL TRADE COMMISSION, Appellant, v. TEXACO, INC., Appellee. FEDERAL TRADE COMMISSION, Appellant, v. STANDARD OIL COMPANY, Appellee. FEDERAL TRADE COMMISSION, Appellant, v. The SUPERIOR OIL COMPANY, INC., a corporation, Appellee. FEDERAL TRADE COMMISSION, Appellant, v. EXXON CORPORATION, a corporation, Appellee. FEDERAL TRADE COMMISSION, Appellant, v. SHELL OIL COMPANY, a corporation, Appellee. FEDERAL TRADE COMMISSION, Appellant, v. STANDARD OIL COMPANY OF CALIFORNIA, a corporation, Appellee. FEDERAL TRADE COMMISSION, Appellant, v. MOBIL OIL CORPORATION, a corporation, Appellee.
Nos. 74-1547 to 74-1551 and 74-1553, 74-1554.
United States Court of Appeals, District of Columbia Circuit.
Argued 18 April 1975.
Decided 8 Aug. 1975.
Robert E. Duncan, Atty., FTC, with whom Gerald Harwood, Asst. Gen. Counsel, William A. Cerillo, Atty., FTC., Howard E. Shapiro and Robert B. Nicholson, Attys., Dept, of Justice, were on the brief for appellant.
William Simon, Washington, D. C., with whom Roger C. Simmons, Washington, D. C., and Robert L. Norris, Houston, Tex., were on the brief for appellee Exxon Corp., in No. 74-1550 also argued for appellees Shell Oil Co., Standard Oil Co. (Indiana) and Texaco Inc.
J. Wallace Adair, Terrence C. Sheehy, Washington, D. C., and Thomas G. Johnson, Houston, Tex., were on the brief for appellee, Shell Oil Co. in No. 74 — 1551.
John W. Howard, Chicago, Ill., was on the brief for appellee, Standard Oil Co. (Indiana) in No. 74-1548.
Robert F. McGinnis, New York City, was on the brief for appellee, Texaco Inc., in No. 74-1547. W. C. Weitzel, Jr., New York City, entered an appearance for appellee, Texaco, Inc., in No. 74-1547.
Abe Krash, Washington, D. C., with whom Paul A. Porter, Daniel A. Rezneck, Washington, D. C., and Herbert W. Varner, Houston, Tex., were on the brief for appellee, The Superior Oil Co. Inc., in No. 74-1549.
Lee Loevinger, Washington, D. C., with whom Martin Michaelson, Washington, D. C., was on the brief for appellee Standard Oil Co. of California in No. 74-1553.
Harry M. Reasoner, Houston Tex., with whom Michael J. Henke, Washington, D. C., was on the brief for appellee Mobil Oil Corp. in No. 74 — 1554.
Before MacKINNON and WILKEY, Circuit Judges and JAMESON, Senior United States District Judge for the District of Montana.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
WILKEY, Circuit Judge:
This litigation is an outgrowth of a Federal Trade Commission (FTC) investigation into the reporting of natural gas reserves by natural gas producers in Southern Louisiana. Specifically, we have before us seven consolidated appeals by the FTC from orders entered by the District Court granting enforcement in part and denying enforcement in part of subpoenas duces tecum issued by the Commission to appellees, seven large natural gas producers, in connection with its investigation. The subpoena issued to each of the appellees and the orders issued by the District Court are reproduced as appendices to this opinion.
I. The Facts and the Issues
The American Gas Association (AGA) is a trade association of producers, distributors, and marketers of natural gas. Through its Committee on Natural Gas Reserves, the AGA has since 1946 been providing the industry, the Government, and the general public with annual estimates of the proved natural gas and natural gas liquid reserves of the United States. For the purposes of gathering reserve data, the nation is divided into ten geographical districts. A member of the Committee on Natural Gas Reserves is assigned to each district; the committee member in turn appoints a subcommittee to assist him in gathering reserve data within the district. The FTC’s investigation focuses on the activities of the South Louisiana subcommittee.
In May 1969 when the AGA reported its 1968 figures, they indicated a decline in proved reserves nationally, the first such decline ever reported. Before the year was out, this and other information reaching the Federal Power Commission prompted a reopening of its just-concluded Southern Louisiana Area Rate Proceeding. Those proceedings will be discussed in more detail below. The May 1970 report for 1969 showed even further declines for total United States reserves and total Southern Louisiana reserves.
In late 1970 the Federal Trade Commission began an investigation into the reporting of proved natural gas reserves in Southern Louisiana. In June 1971 the investigation took on more formal status when the Trade Commission issued a resolution authorizing the use of compulsory process in furtherance of a nonpublic investigation. In that resolution the nature and scope of the investigation was defined as follows:
The purpose of the authorized investigation is to develop facts relating to the acts and practices of [certain named corporations] to determine whether said corporations, and other persons and corporations, individually or in concert are engaged in conduct in the reporting of natural gas reserves for Southern Louisiana which violates Section 5 of the Federal Trade Commission Act, or are engaged in conduct or activities relating to the exploration and development, production, or marketing of natural gas, petroleum, and petroleum products, and other fossil fuels in violation of Section 5 of the Federal Trade Commission Act..
From the beginning of its investigation the AGA had been cooperating with the Trade Commission on a voluntary basis. As a result the Commission was able to obtain the field-by-field estimates of proved reserves made by each Southern Louisiana subcommittee member for the years 1966 through 1970. The Commission had also obtained reserve information from Form 15 reports filed with the Federal Power Commission. These reports are filed by..interstate natural gas pipelines and list recoverable, saleable gas reserves committed to, collected by, or held by reporting pipelines.
Approximately one year after beginning its investigation, on 24 November 1971, the Commission’s staff issued identical administrative subpoenas duces tecum to eleven natural gas producers. All eleven producers moved to quash the subpoenas. The motions to quash or limit were denied by the Commission on 27 June 1972. Following the Commission’s denial, the Trade Commission’s staff, after negotiations with the gas producers, offered additional safeguards for the confidentiality of information to be supplied. As a result two producers agreed to comply fully with the subpoenas and one agreed to comply in part. (Soon after petitions for enforcement were filed in the District Court, one more firm agreed to comply with the subpoena.)
Petitions for enforcement of the remaining subpoenas were filed in the District Court on 4 June 1973. On 30 July 1973 the District Court held a hearing on preliminary motions and also heard a preliminary presentation of the issues posed by the case. Subsequently evidentiary materials and briefs were filed by all parties. A second hearing was held on 13 December 1973 at which time the issues were fully argued to the court over a period of several hours.
The two orders here under review were filed on 22 March 1974. One order covered the subpoenas issued to appellees Texaco, Inc., Standard Oil Co. (Indiana), Shell Oil Co., Exxon Corp., Standard Oil Co. of California, and Mobil Oil Corp. The other order related to the subpoena issued to the Superior Oil Co., Inc. (hereinafter Superior). The former order enforced specifications A, B, C, D, E, and F in full; however, it only granted partial enforcement of the remaining specifications, G through L.
The District Court found the subpoenas to be overly broad and unduly burdensome because they sought to duplicate activities of the Federal Power Commission which had already resulted in a finding that AGA proved reserve estimates were valid and accurate. As a result, specifications G through L were modified so that raw field data, bid calculation data, and bid calculation files need not be produced. However, all documents containing or underlying proved reserve estimates in the offshore Southern Louisiana area are to be produced.
The court, in an attempt to make the subpoenas less burdensome, limited production of these documents to a random sample of 100 out of approximately 225 relevant fields and to the years 1969, 1970, and 1971. Specifications J, K, and L were similarly modified so that only documents relating to proved natural gas reserve estimates in the offshore Southern Louisiana area need be submitted. However, the court enforced the subpoena as regards any documents prepared between 1966 and 1971, inclusive, “which were exchanged' between or among, or constitute, contain or refer to any agreement, arrangement or communication between or among, respondents or others, including the American Gas Association.” The subpoenas were also modified so that additional protections were afforded to confidential information. In addition, producers were accorded the option of producing records for inspection where they were stored.
Superior was in a different position from the other six producers. Superior had never been a member of the AGA nor had it ever furnished proved reserve figures to the AGA. Superior’s employees also had not participated in the work of AGA’s committees or subcommittees. As a result, the District Court enforced specifications A through F and K through L in full and denied enforcement of specifications G, H, I, and J. Identical confidentiality protections were afforded Superior.
Because the producers have not cross-appealed, the issues before us relate solely to the limiting modifications made by the District Court. For the purposes of this opinion, we have formulated those issues as follows:
(1) Was the District Court in error in refusing to enforce those portions of the subpoenas that called for documents which did not relate to estimates of proved reserves?
(2) Did the District Court abuse its discretion in limiting production of documents to a random sample of fields and to the years 1969, 1970, and 1971?
(3) Did the District Court abuse its discretion in attaching conditions to disclosure to insure confidentiality and in permitting documents to be produced for inspection at their situs?
(4) Was the District Court in error in affording Superior Oil differing treatment?
We proceed now to deal with these issues.
II. Documents Which Did Not Relate to Proved Reserves
A. The Arguments
The producers have never quarreled with the power or the right of the Federal Trade Commission to investigate the natural gas industry to uncover violations of the antitrust laws or unfair trade practices. However, they argue that there can be no possible reason for wanting documents that do not relate to proved reserve estimates because it is only proved reserve estimates that are taken into account by the Federal Power Commission in the setting of area rate ceilings. In addition, they argue that the Federal Power Commission, the only agency possessing the requisite expertise, has determined that AGA proved reserve data is accurate. Therefore, the FTC is collaterally estopped from relitigating the issue.
The Trade Commission, on the other hand, points out' that there is no provision in the Federal Trade Commission Act (FTCA) excepting gas producers from the coverage of the Act, as there is for banks and certain common carriers, and that therefore jurisdiction to investigate exists. They argue that such jurisdiction is broad, “reaching not only existing violations of [the Sherman and Clayton Acts], but trade practices which conflict with their basic policies.” The Trade Commission goes on to argue that, as a factual matter, its investigation does not duplicate studies made by the Federal Power Commission and that, even if it did, collateral estoppel would be inapplicable because its purpose in determining the accuracy of reserve data is different from the Power Commission’s purpose in determining accuracy.
Although the producers may be correct in arguing that data relating to any reserves other than proved reserves would be irrelevant, our reading of the transcript of the 10 December 1973 hearing indicates to us that the District Court had not reached the issue of relevance in regard to the totality of all documents subpoenaed. The court believed that the Trade Commission had subpoenaed all reserve records in order to determine independently the total gas reserves of the area. Since the Power Commission had already determined that AGA figures were accurate, the court was of the view that the Trade Commission could not force the producers to relitigate the matter and that, in any event, it would be unduly burdensome to permit yet another plenary investigation (for the third time in two years) of natural gas reserves.
In order to fully understand the District Court’s ruling on this aspect of the case, it is necessary for us to discuss the previously alluded to Power Commission investigations.
B. The Federal Power Commission Investigations
Although the Federal Power Commission (FPC) began area rate proceedings in 1961 for the Southern Louisiana area, it was not until 1968 that the Commission rendered a final decision, which in turn was modified in early 1969. Even before oral argument could be heard before the Fifth Circuit on petitions for review sought by producers, pipeline companies, and consumers, the FPC had instituted new proceedings (So La II) “to reconsider all major actions it had taken” in the prior proceeding. As the FPC stated in its order instituting So La II, Phase I of its new proceeding “should include evidence with respect to the adequacy of gas supply and adequacy of service to consumers, the demand for gas, the gas shortage, if any, the effect of price on gas supply and demand, and other relevant economic evidence...."
The FPC was concerned in So La II with complaints that adequate supplies of natural gas were not being produced and would not be produced under the recently ordered area rate ceilings. More important for present purposes, the FPC during So La II was presented with the argument by Municipal Distributors Group (MDG), an intervenor which represented the interests of municipal and other publicly owned gas distribution systems, that the supply shortage was more apparent than real. It was argued that “the sharp decline in the supply picture in 1968 — 69 is revealed by the above record evidence to be caused largely by revisions in the estimates” of proved reserves reported by the American Gas Association (AGA). Such a contention went to the heart of the Power Commission investigation. If it were true that the decline in reserves was a matter of definition and not of economics, the concern of the FPC that new area rates might be required to encourage production would be obviated.
In its final opinion in So La II the FPC discussed testimony which was used by MDG to impeach AGA data. The testimony outlined several methods by which producers could withhold reserves from the AGA. Discussed also were MDG’s arguments relating to discrepancies between figures gathered by the FPC and those submitted by the AGA. The FPC also referred in some detail to the testimony and exhibits supporting the reliability of AGA data. As a result, it reached the following conclusions:
AGA and Form 15 data show similar trends of reserves and reserve-to-production (R/P) ratios. AGA data indicates a steady decline in the national R/P ratio from 19 in 1963 to 13 in 1969. Form 15 data indicates a similar decline in the national R/P ratio from 20 in 1963 to 14 in 1969. The American Gas Association reserve data is not impeached, in our opinion, in this discrepancy.
sfc * 4: sfc * ^
For the reasons stated herein, we find the AGA reserve data is reasonably reliable for the purposes used herein. Accordingly, and because petitioner has not raised any new evidence, we deny the petition to reopen.
In other words, while AGA data started with 19 years of reserves and the Form 15 data started with 20 in 1963, by 1969 each calculation had dropped 6 years off its proved reserve figure, so the two calculations were comparable. Thus, AGA data was shown to be reliable.
The issue was raised again on review before the Fifth Circuit and received the following extensive rebuttal in a footnote:
13 As might be expected, there is some controversy over this. Standing virtually alone against the National (and record) judgment of a near energy calamity, the American Public Gas Association (APGA) contends that the current critical shortage of natural gas is but a pretextual “cry of wolf” calculated to mislead FPC into establishing artificially high rates in the producers’ behalf. APGA would have us believe that the energy crisis is a mirage — indeed, a hoax! APGA claims that “there appear to be adequate supplies of gas in the domestic United States to satisfy the projected demands of U. S. consumers well into the 21st Century.” APGA Supp.Brf. at 5 n. 9. But to talk of “Supplies” of gas is a misleading oversimplification. Obviously, the gas is not presently available. At most, if there is appropriate exploration, the demonstrable reserves may be exploited to meet the needs. Given a system which depends on private stewardship and marshalling of natural resources, there is a supply shortage if the producers do not produce. FPC has the statutory duty, not only to guard the consumers against super-profits reaped from artificially inflated rates, but also to protect consumer interests by making sure that the rate schedule is high enough to elicit an adequate supply. It is a delicate balancing test. FPC must fix its course to attain the utopian “optimum” rate schedule. Given the current shortage of available supply FPC must swing the pendulum towards the incentive, supply-eliciting side of rates. And so it has done.
In addition to the examination undertaken in relation to the So La II proceedings, the Power Commission undertook in early 1971, at the direction of Congress, a National Gas Survey, a portion of which was a National Gas Reserves Survey (NGRS). NGRS was a completely independent survey of reserves and did not rely on AGA figures at any point. However, in the Final Staff Report of the NGRS (May 1973) a comparison was made with AGA figures:
The NGRS estimate is lower than the estimate by A.G.A.; however, the difference is less than 10 percent. The difference of 23.5 Tcf between the estimate of the non-associated and associated gas reserves for the 6,358 entries in the reported fields category (a) is the primary difference between the total estimates. The gas reserves in the “A.G.A. omitted fields” are a relatively insignificant part in the total NGRS estimate, and it seems evident that the 62 entries in the “omitted” category (b) are small fields. The two dissolved gas estimates differ by 1.7 Tcf or by about 5 percent.
C. Collateral Estoppel
The Supreme Court and this court have clearly stated that an agency or a private party can be collaterally es-topped in a later court proceeding if a relevant issue had already been resolved in a contested hearing before the agency. The Supreme Court recently affirmed this principle:
Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 [60 S.Ct. 907, 84 L.Ed. 1263]; Hanover Bank v. United States, 285 F.2d 455, 152 Ct.Cl. 391; Fairmont Aluminum Co. v. Commissioner of Internal Revenue, [4 Cir.], 222 F.2d 622; Seatrain Lines, Inc. v. Pennsylvania R. Co., [3 Cir.], 207 F.2d 255. See also Goldstein v. Doft, [D.C.N.Y.], 236 F.Supp. 730, aff’d [2 Cir.], 353 F.2d 484, cert. denied, 383 U.S. 960 [86 S.Ct. 1226, 16 L.Ed.2d 302], where collateral estoppél was applied to prevent relitigation of factual disputes resolved by an arbitrator.
The Supreme Court has also held that collateral estoppel can be applied when the prior proceeding involved a different government agency because for collateral estoppel purposes, agencies of the same government are in privity with each other.
Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. As stated in Chicago, Rock Island & Pacific Railway Co. v. Schendel, 270 U.S. 611, 620 [46 S.Ct. 420, 423, 424, 70 L.Ed. 757, 53 A.L.R. 1965], “Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different... and parties nominally different may be, in legal effect, the same.” A judgment is res judicata in a second action upon the same claim between the same parties or those in privity with them. Cromwell v. County of Sac, 94 U.S. 351 [24 L.Ed. 195]. There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.
Other Circuits have applied both these principles in appropriate cases. The Eighth Circuit has held that the FTC was collaterally estopped from claiming use of unfair methods of competition where the claim was based on factual issues resolved favorably for defendants in a prior proceeding instituted under the Food and Drug Act. Reciprocally, the Seventh Circuit upheld the defense of collateral estoppel in a proceeding under the Food and Drug Act where a prior proceeding before the FTC held that defendant’s labeling claims were not deceptive.
It is difficult for us to discern why the policies which support the application of res judicata or collateral estoppel between court adjudications involving different agencies would not always be equally applicable between administrative adjudications (especially in an era when administrative agencies are taking on duties which were once the preserve of the courts). However, there is no need to resolve this broader issue at this time because we hold that the application of collateral estoppel is clearly appropriate on the facts of this case. The Trade Commission knew of the Power Commission’s adjudicatory proceeding in So La II when it initiated its own investigation and could have intervened in the proceeding. We also weigh heavily the fact that the Power Commission has particular expertise on the factual issue involved, the accuracy of industry figures on proved natural gas reserves. In addition, we find that an area rate proceeding, bringing together as it does sharply divergent economic interests in the same arena to do battle, provided an excellent context in which to resolve such an issue. The record clearly indicates that So La II was conducted in an adversarial environment wherein third parties with adverse economic interests participated at all stages of the proceedings.
Having concluded that the application of collateral estoppel would be appropriate in this case, we. turn now to the essentially factual question whether the Power Commission actually did determine an issue which the Trade Commission now seeks to relitigate. We note that on this matter our scope of review is narrower; we may reverse the District Court’s determination only if it is clearly erroneous. The Trade Commission in its briefs never directly argues that the Power Commission did not actually determine the accuracy of AGA figures. Rather, the Trade Commission contends that the Power Commission only determined that AGA figures were appropriate for its use in the determination of just and reasonable rates. The Trade Commission seeks to determine whether the producers are underreporting reserves and are thus violating the FTCA. We agree with appellees that the distinction is illusory. “[T]he FTC’s very theory is that there is antitrust significance in reporting misleading reserves data because rates were affected.”
The District Court probed counsel for the Trade Commission on this point several times. At some points counsel argued that it wanted reserve estimates because it was investigating “possible collusive conduct by the natural gas producers in the reporting of these reserves.” In this regard, the District Court explicitly stated in its order that the producers must produce all documents passing inter se or with the AGA. At other points the argument appears to be what we set out above.
There can be no question that the Trade Commission has jurisdiction to determine whether the antitrust laws or the FTCA has been violated. However, the District Court was entitled to conclude on the present record (1) that the Trade Commission desired all reserve data in the possession of appellees in order to recompute independently Southern Louisiana reserves, and (2) that the Power Commission, on the basis of a contested evidentiary hearing, had found that the industry’s figures for Southern Louisiana reserves for the relevant years were accurate. Based on these findings, the District Court could reasonably have concluded that it would be unjust and unreasonable to require the production of every scrap of data which related to reserves of any kind. By limiting production to “documents containing or underlying proved natural gas reserve estimates,” the court has drawn a reasonable balance between the investigatory needs of the Trade Commission and the producers’ claims arising out of the prior Power Commission investigations.
D. The Bid Files
Among the documents which would be liable to disclosure under specifications G, H, and I would be the producers’ bid files. The bid files include information which producers assemble in advance of an oil lease bid. The information is based upon limited geophysical information and usually not upon actual exploration. The producers consider the models they have developed for making lease bids the most valuable trade secrets they own, because of the large outlays which have gone into their development and the ease with which any producer could be outbid on leases if its competitors had access to the model. The producers assert that data contained in a bid file would give a competitor easy access to their bid models and understandably strongly argue against disclosure.
The producers argue that the bid files are not relevant to any calculation of proved reserves, because the bids files only contain speculative estimates of producing capacity based on limited information. Once a producer obtains a lease and thus is able to drill exploratory wells, these bid estimates are no longer used by the company (except presumably to improve their bidding model or to analyze the bidding behavior of opponents). As a result, producers contend that the bid files could not be relevant to an investigation into conspiratorial and other practices to underreport proved reserves.
The Trade Commission on the other hand argues that “[t]he ‘bid files’ contain estimates of reserves, no matter how speculative or untested, and as such, are plainly relevant to the analysis of gas reserve reporting which is part of the Commission’s investigation.” The Trade Commission adds in a footnote that the FTCA gives it the authority to report to Congress and that it therefore should be permitted to gather information for that purpose as well as for the more limited purpose of individual cease- and-desist orders.
The Supreme Court in Oklahoma Press Publishing Co. v. Walling clearly indicated that the District Court must consider in an enforcement proceeding whether the documents sought by an administrative subpoena are relevant to the agency’s inquiry. The judicial function in this regard is to be considered “neither minor nor ministerial.” Because such a question is essentially factual in nature, we must defer to the District Court’s finding unless we can conclude that its determination was clearly erroneous.
The evidence and argument presented to the District Court permitted it to conclude that the producers’ bid file contained highly speculative estimates, which would be rapidly superseded by much sounder estimates, once the winning bidder could begin drilling. After the first well is drilled on a lease, no company relies on bid file data,- nor is such data ever reported to the AGA. Only data relevant to proved reserves is reported, and the essential ingredient in the definition of “proved reserves” is that the data is obtained by drilling, by penetration of the formation. The “proved reserves” definition is accepted by the industry, the Power Commission, and the Trade Commission here. Thus, even if the bid file data showed a gross disparity compared to the data on proved reserves submitted to the AGA, this would prove nothing except that the company’s original bid estimates were sadly in error, for by definition the proved reserves data must be based on geological information obtained by drilling at a later time than when the bid data is assembled. The preliminary data has no relevance whatsoever in showing whether the preliminary estimates of reserves should later, be moved to the strictly defined category of “proved reserves.”
The Trade Commission makes one final argument, that companies sometimes delay drilling in order not to acquire any proved reserve data which they would be obligated to turn in to the AGA. Aside from the dubious wisdom (and likelihood) of a petroleum company paying millions of dollars and then permitting the lease to go untested, the District Court judiciously added the following caveat:
If you can later come back to me with a situation where a company has been awarded a bid on a property and has delayed an unreasonable time in drilling on it so they could come up with a proper estimate, then you may apply and I will consider giving you the bid file on that particular one.
We therefore affirm the District Court’s finding that the bid materials were not relevant at the present time to the Trade Commission’s inquiry and the related modification contained in paragraph 2(a) of its six producers’ order.
III. Random Sampling and Time Limitations
The Trade Commission argues that the District Court should have required complete disclosure of all proved reserve data in the Southern Louisiana area back through 1962. Instead, the court ordered disclosure (1) of proved reserve data for a random sample of 100 fields out of the 220 in Southern Louisiana (2) for the years 1969, 1970, and 1971.
It is well established that an enforcing court may limit through modification or partial enforcement subpoenas it finds to be unduly burdensome. Such modification or partial enforcement is an exercise of the District Court’s sound discretion and will only be overturned on appeal for abuse of discretion.
With respect to the random sampling, the Trade Commission’s position is that
Such a limitation and sampling would make impossible any comparison of the total data supplied by producers who have fully complied with the subpoenas with the limited data which would be forthcoming from producers who supplied documents on only a random and numerically limited basis. Similarly the comparison with all the data submitted to the AGA for this region would be foreclosed.
Clearly the requirement that the Commission resort to a random sample of 100 fields would preclude any possibility of making a reasonable evaluation of natural gas reserves or checking the accuracy of estimates of natural gas reserves for Southern Louisiana.
On either theory of its investigation the Trade Commission’s argument is unconvincing. If the Trade Commission is looking for an antitrust conspiracy, a random sample made up of data from 45% of the relevant fields should be adequate to turn up evidence of a conspiracy (if there is evidence to be turned up). If the FTC is investigating whether either the industry-wide definition of proved reserves or the manner of reporting such reserves is an unfair trade practice, we fail to see how a random sample of data from 45% of the fields would be inadequate. A random sample permits comparisons between producers or between producers and the AGA figures, especially since the FTC already has the AGA’s complete field-by-field figures. The District Court was entitled to conclude on the record before it that disclosure of data from all 220 fields would be burdensome, and that use of a random sample would neither preclude a reasonable evaluation of the manner in which reserves are estimated nor prohibit the Commission from checking the data as to its accuracy. We therefore affirm this aspect of the District Court’s order.
On the other hand, the reasons for limiting disclosure to documents prepared during 1969, 1970, and 1971 are not as apparent to us. The Trade Commission’s investigation was triggered, at least in part, by the drop in 1968 and 1969 of proved reserves as reported by the AGA. The Commission would thus appear to need data for a period of time preceding the reported drop in reserves in order to make comparisons. In this regard, we find the Commission’s request for disclosure under specifications G, H, and I back through 1962 to be appropriate. We therefore conclude that the District Court’s failure to require such disclosure is an abuse of discretion and must therefore be reversed.
IV. Confidentiality and Production at Situs
The District Court attached the following conditions upon the disclosure of documents designated as confidential:
(1) The Secretary of the Federal Trade Commission is designated the custodian of the documents;
(2) The documents (and presumably any documents or memoranda derived therefrom) must be kept in a depository with access restricted to the FTC employees assigned to the investigation;
(3) Documents can only be removed from the depository or used for other purposes with the court’s permission; and
(4) Upon the termination of the investigation, the documents (and presumably all copies of documents) must be returned to their owner.
The Trade Commission does not question the confidential nature of the documents it seeks disclosed. Rather, its position is that the FTCA and the Commission’s Rules of Practice provide appellees with adequate protection. In fact, the FTCA and the Rules of Practice merely state that the public disclosure of geophysical data or information and trade secrets is within the discretion of the Commission. 16 C.F.R. 4.11(d) clearly indicates that the Trade Commission will decide ultimately whether records exempt from disclosure under the Freedom of Information Act (as most of these records probably would be) will be disclosed.
The District Court was not required to rely on the unbounded discretion of the Trade Commission to. keep the producers’ estimates confidential. In addition, we fail to see how the minor procedures imposed by the court will impose any substantial burden on the Commission’s investigation. We therefore hold that the District Court did not abuse its discretion when it attached the conditions listed above to the disclosure of information by all seven appellees.
The Trade Commission also complains about the option permitting the production of documents for inspection where they are stored. The Supreme Court in CAB v. Hermann upheld the enforcement of a subpoena “with appropriate provisions for assuring the minimum interference with the conduct of the business of respondents.” The Second Circuit has also upheld a similar provision. It noted that “[r]equiring records to be produced away from the place where they are ordinarily kept may impose an unreasonable and unnecessary hardship which in itself would make the issuance of the subpoena, otherwise proper, arbitrary and capricious.” Since the number of documents to be produced will be quite large, it is not inappropriate to relieve appel lees of some of the expense and burden entailed by permitting them the option of producing documents where they were stored. It would then be the responsibility of the Trade Commission to copy and transport to Washington any documents they consider useful. We affirm the District Court as to the in situs condition.
V. The Superior Order
The Commission concedes that Superior does not report reserve estimates to, or participate in, the work of the AGA. Since the FTC issued identical subpoenas to all producers, it was obvious to the District Court that several specifications, those relating to reporting and participating in the AGA, were not relevant to Superior. As a result, the District Court simply refused to enforce specifications G through J. In all other respects Superior will be required to provide the Commission with the same documents and information that is being required of the other six producers, subject to the confidentiality protections previously discussed. We affirm this order.
VI. Conclusion
In the last analysis a petition for enforcement of an administrative subpoena duces tecum must be judged by the District Court on a case-by-case basis. Because questions of relevance and burdensomeness are peculiarly within the ken of the trial court, appellate tribunals should be wary of second-guessing. In our view, the District Court’s orders represent a just and fair accommodation between the Trade Commission and the producers.
To summarize, we have affirmed the District Court’s order in all respects save one, the time limitation in paragraph 2 of the six producers’ order.
Affirmed in part and reversed in part.
See Appendix on next page.
APPENDIX A
SUBPOENA-DUCES TECUM
DEFINITIONS
As used herein, the term “documents” means all writings of every kind including books, records, folios, minutes, reports, memoranda, correspondence, agreements, discounted cash flow studies, cover sheets, calculation sheets, print outs, telegrams, diary entries, pamphlets, notes, charts, and tabulations in the possession, custody or control of the Company. The term “documents” also includes voice recordings and reproductions or film impressions of any of the aforementioned writings as well as copies of documents which are not identical duplicates of the originals and copies of documents of which the originals are not in the possession, custody or control of the Company. The term “documents” further includes all punch cards or other cards, tapes or recordings used in data processing, together with the programming instructions and other written material necessary to understand or use such punch cards, tapes or other recordings.
In response to specifications in which the term “documents” is followed by an asterisk (*), a verified written statement by an officer of the company containing the requested information may be submitted in lieu of the documents called for provided that the underlying documents or source materials are listed or otherwise specifically identified in, or as part of, such verified statement.
Each document submitted must be identified as to the specification or specifications to which it is responsive.
The term “the Company” means the corporation upon which this Subpoena was served as well as its directors, officers, employees, and agents; its subsidiaries and affiliates; and the directors, officers, employees and agents of its subsidiaries and affiliates. The term “the corporation” means the corporation upon which this Subpoena was served.
Unless otherwise stated, the following definitions apply to the
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_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. Frank C. McLISTER, Defendant-Appellant.
No. 78-3077.
United States Court of Appeals, Ninth Circuit.
Nov. 21, 1979.
Richard B. Mazer, San Francisco, Cal., for defendant-appellant.
Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and JAMESON, District Judge.
The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.
JAMESON, District Judge:
A jury found Frank C. McLister guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and acquitted him of conspiring to distribute cocaine in violation of 21 U.S.C. § 846.
Factual Background
McLister and three codefendants, John Irwin, Sharon Baker, and Thane Rucker were arrested after participating in a transaction in which a pound of cocaine was sold to an undercover government agent. McLister does not deny his participation or his knowledge that the sale involved cocaine. Rather, he contends that he lacked the requisite criminal intent.
The events leading to the arrests began in Denver, Colorado, where Irwin was arrested by the Denver Police Department in December, 1977, for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent, who was posing as a large scale drug dealer. Wisdom was aware of Irwin’s status, but Irwin did not know that Wisdom was a DEA agent. In subsequent negotiations, Wisdom began to suspect that Irwin was “double dealing”, i. e., acting as an informant and continuing to deal in the illegal distribution of drugs.
On March 6 Irwin told Wisdom that he had set up a transaction in San Francisco for the purchase of a pound or two of cocaine. Irwin and his girl friend, Sharon Baker, flew to San Francisco later that day, and Wisdom followed on March 7. After making final arrangements for the purchase of the cocaine, Wisdom met Irwin and Baker in the lobby of the Hilton Hotel. Shortly thereafter McLister and Rucker arrived in McLister’s camper. After Wisdom entered the camper, Irwin and McLister produced the cocaine and gave it to Wisdom. Shortly thereafter, Wisdom and other agents arrested the four defendants.
At the trial Irwin testified that he had participated in the cocaine sale solely in furtherance of his plea agreement with the Denver Police and that he had intended to turn the participants over to the authorities. He claimed that McLister supplied the cocaine. On the other hand, McLister testified that prior to the transaction Irwin told him that he and Baker were acting as undercover agents for the Denver Police and that he reluctantly agreed to assist them in arranging for the arrest of a narcotics trafficker (Wisdom). McLister testified further that the cocaine he handed to Wisdom in the trailer belonged to either Irwin or Baker, who had placed it in the camper the night before with his permission.
Contentions on Appeal
Appellant contends that the district court erred in (1) restricting appellant’s cross-examination of his codefendant Irwin and Denver Police Detective Meyer; (2) permitting the prosecutor to cross-examine appellant concerning a misdemeanor conviction for possession of marijuana; and (3) instructing the jury that it would consider evidence that appellant had used cocaine; and (4) that the acquittal of appellant on the conspiracy charge was inconsistent with its verdict of guilty on the substantive charge.
Inconsistent Verdicts
We find no merit in appellant’s last contention that his acquittal on the conspiracy count precluded his conviction on the substantive count of distribution of cocaine. See, e. g., United States v. Livengood, 427 F.2d 420, 423 (9 Cir. 1970), where the jury acquitted the defendants on conspiracy charges to commit mail fraud, but convicted them on substantive counts of overt acts included in the conspiracy count. This court rejected the contention that a reversal was required and followed the general rule “that consistency between the several counts of an indictment or information is not necessary where a defendant is convicted upon one or some of the counts but acquitted on another or others and that the conviction will be sustained even though rationally incompatible with the acquittal.” Id. at 423 (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)).
We conclude, however, that the combination of other alleged errors requires a reversal, even though each by itself might constitute harmless error.
Cross-examination of Irwin and Meyer
The alleged errors in the cross-examination of codefendant Irwin and Gregory Meyer, a Denver Police Department detective, resulted in large part from the conflicting contentions of the defendants, i. e., Irwin and Baker claiming that McLister owned the cocaine, and McLister claiming that it was owned by Irwin or Baker, and that he was simply assisting them in arranging for the sale to a narcotics trafficker, assuming that Irwin and Baker were under-cover agents.
(a) Cross-examination of Meyer
Meyer, called as a witness by codefendant Baker, testified during direct examination that in February, 1978, he did not believe Irwin was double dealing in his negotiations with agent Wisdom, despite DEA conclusions to the contrary. On cross-examination Meyer was asked by counsel for McLis-ter if he then believed Irwin had been double dealing. The court sustained the Government’s objection that Meyer’s opinion was irrelevant. In an offer of proof McLister claimed that Meyer would have testified that at the time of trial he believed Irwin had been double dealing, contrary to his previous opinion: Appellant argues that this testimony should have been permitted because it related to a subject raised on direct examination and supports his defense.
It is probably true, as the Government argues, that Meyer’s answer might have “caused prejudicial harm to Irwin”. We cannot agree, however, that it could not have benefited McLister. Meyer’s testimony on direct examination might well have left the impression that at the time of trial, Meyer continued to believe that Irwin was not double dealing and his participation in the transaction was solely to assist the Denver police. This would affect McLister’s defense, which in part required the jury to believe that Irwin was acting on his own and was the owner of the cocaine. To prevent a possible half truth, detrimental to appellant, it was proper and relevant for him to cross-examine detective Meyer on his current opinion on whether Irwin had been double dealing. See United States v. Brady, 561 F.2d 1319, 1320 (9 Cir. 1977). The question was directed specifically to testimony developed by Irwin and the trial court on direct examination. See United States v. Alvarez-Lopez, 559 F.2d 1155, 1158 (9 Cir. 1977).
(b) Cross-examination of Irwin
On April 4,1978, Wisdom, without Irwin’s knowledge, taped a telephone conversation in which Irwin admitted that he had been double dealing in San Francisco. Following a pretrial hearing the district court granted Irwin’s motion to suppress this conversation, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
At trial the court refused to allow appellant to question Irwin concerning the April 4 conversation on the ground that the post-arrest conversation was irrelevant. Appellant argues that the conversation would have (1) shown Irwin’s bias, prejudice and interest in naming the appellant as the source of the cocaine, (2) impeached Irwin’s credibility, and (3) supported appellant’s defense.
Irwin testified that he acted solely to further his plea agreement with the Denver police, and that McLister had furnished the cocaine. It was necessary to appellant’s defense that the jury find that Irwin had been double dealing and also that appellant had assumed that Irwin was acting as an undercover agent. Appellant had a right to impeach Irwin’s credibility. The evidence was relevant and might have been helpful to appellant’s defense. The fact that Irwin was not called as a witness by the Government is immaterial. See United States v. Dixon, 547 F.2d 1079, 1084 (9 Cir. 1976).
The Government argues that any error in refusing to permit appellant to examine Irwin was, in any event, harmless error. It is true that in finding Irwin guilty of both conspiracy and distribution, the jury must have believed that he was double dealing. It is difficult, however, to determine what effect, if any, this testimony would have had upon appellant’s defense. If this were the only error, we might well conclude that it was harmless in view of other evidence of McLister’s guilt. As noted supra, however, we conclude that combined with other errors, reversal is required.
Prior Marijuana Conviction
The district court, over objection, permitted the Government to cross-examine McLister with regard to a misdemeanor conviction nine years earlier involving possession of one cigarette. As the Government notes in its brief, the evidence was offered as a “misdemeanor conviction involving moral turpitude” under Rule 609(a), Federal Rules of Evidence. The court, however, did not accept the evidence under that theory and later instructed the jury that the conviction could be considered “only in the light of the characterization of . [appellant’s] life style as one that might normally have been expected to exclude the use of such substances”.
(a) Admissibility under Rule 609(a)
Rule 609(a), Federal Rules of Evidence provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
The marijuana conviction was not punishable by “imprisonment in excess of one year” and did not involve “dishonesty or false statement”. It therefore could not be used to impeach credibility. See, e. g., United States v. Ortega, 561 F.2d 803 (9 Cir. 1977); United States v. Thompson, 559 F.2d 552 (9 Cir. 1977).
(b) Admissibility under Rule 404
Rule 404 relating to “character evidence” provides in 404(a) that:
Evidence of a person’s character . is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except [when] . offered by an accused, or by the prosecutor to rebut the same .
A defendant may offer testimony “that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged”. Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). Such testimony is limited to opinions with respect to the defendant’s general reputation in the community. When the defendant offers testimony tending to prove his good reputation, the Government may introduce contradictory evidence. Id. 476, 69 S.Ct. 213 et seq.
Appellant’s counsel in his opening statement told the jury that McLister was engaged in the antique business, had purchased property in Colorado and intended to go into the hydroponics business, and came from “what may be called a relatively privileged background”, with no need to get into any illegal business. McLister testified regarding his property interests and his intention of going into the hydroponics business. The Government argues that it had the right under Rule 404(b) to impeach McLister’s credibility and to show “his knowledge of illicit drugs”.
We cannot find that either counsel’s opening statement or McLister’s own testimony placed his general character in issue under Rule 404(a) or under the rules set forth in Michelson v. United States, supra. See United States v. Tomaiolo, 249 F.2d 683, 689 (2 Cir. 1957). Nor did appellant request any jury instruction indicating that he intended to place his character in issue. The trial judge specifically instructed the jury that the marijuana conviction was to be used “only in the light of the characterization of . [appellant’s] life style . ”. There is no suggestion that the court intended that the evidence could be considered for any of the purposes, including knowledge, set forth in Rule 404(b).
Assuming, arguendo, that the appellant’s character was placed in issue or that Rule 404(b) is applicable, any relevance the marijuana conviction might have is outweighed by its prejudicial effect. Rule 403 and Rule 609, Fed.R. of Evid., require balancing of the probative value of the evidence against its prejudicial effect. A misdemeanor marijuana conviction nine years before the indictment has little probative value to impeach credibility or to prove any of the purposes listed in Rule 404(b), but its prejudicial effect could be significant.
The Government argues that any error in admitting the evidence was harmless beyond a reasonable doubt — that evidence of a minor marijuana conviction nine years ago could not be deemed unfairly prejudicial. If this were the only error, we might agree, but again we must consider the potential effect of the series of errors in the Government’s proof.
Instruction on Cocaine Use
Irwin testified that the night before the San Francisco arrests, he, Baker, McLister, Rucker and four others were at appellant’s home. Someone produced cocaine for “socializing”, which he ingested to satisfy himself that it was cocaine and not a substitute. He denied knowing who brought the cocaine out. Appellant denied having used it.
The court instructed the jury that “there was some testimony that he [appellant] had used cocaine at his home in the presence of the persons who were said to be there.” Appellant objected, claiming that no evidence in the record indicated that he had used the cocaine. The court then rein-structed the jury as follows:
THE COURT: I think I said to you that there was evidence that McLister might have ingested some cocaine at his house on the evening of the purported party.
You will recall what the evidence was on that point. I have. It’s been suggested that there was no specific evidence dealing with Mr. McLister and it may well be that the evidence was solely that some other person or persons had done it and there was no evidence with respect to Mr. McLister. So I withdraw that. If you do think that the state of the evidence was such as to indicate that McLis-ter did ingest any cocaine on that evening, then consider that only for the limited purpose that I indicated to you.
But I do not state unequivocally that that is what the evidence said, but it might be that it is possible for you to make that, draw that conclusion from the evidence.
Appellant contends that the jury could not permissibly infer from the evidence in the record that he had used cocaine on the night prior to his arrest. He argues that the trial judge’s instruction that the jury might draw this conclusion inserted a false issue in the case, and was, therefore error.
It is of course well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation. See, e. g., United States v. Thomas, 453 F.2d 141, 143 (9 Cir. 1971), cert. denied 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1978); United States v. Waskow, 519 F.2d 1345, 1347 (8 Cir. 1975). Here Irwin testified that someone produced a small amount of cocaine for “socializing” at McLister’s home and that he had a conversation with McLister about the cocaine before it was passed around. There is no evidence, however, that McLis-ter used the cocaine.
The Government argues that even though the record “does not specifically reflect that McLister used any of this cocaine”, it is reasonable to infer that he used and furnished it; that the erroneous instruction was corrected; and that in any event, it was harmless error in the context of this case.
While a close question is presented, we conclude that the instruction was improper in view of the absence of any evidence that McLister used the cocaine. If this were the only error, we would hold it harmless. As noted supra, however, we are forced to the conclusion that the combined errors were prejudicial and require a reversal. See United States v. Ortega, supra.
Reversed and remanded for new trial.
. The defendants were charged and tried jointly. Irwin and Baker were convicted of both conspiracy to distribute and distributing cocaine. Irwin’s conviction is on appeal. Baker is a fugitive. Rucker was acquitted on both charges.
. Prior to trial McLister had moved to sever his trial from that of Irwin and Baker on the ground that their testimony was indispensible to his defense. The motion was denied. In light of the proof offered at the trial, the motion could properly have been granted.
. Having found possible prejudice, we need not consider whether the restriction of appellant’s right to cross-examination was of constitutional dimensions. See United States v. Brady, supra, 561 F.2d at 1320.
. Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
. The Government’s reliance upon United States v. Batts, 573 F.2d 599 (9 Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), is misplaced. Batts is distinguishable on two grounds: (1) Batts, charged with distribution of hashish, claimed lack of knowledge of cocaine, the uses of a coke spoon, and the existence of hashish in his vehicle. Evidence that he had recently participated in a cocaine sale was held admissible under Rule 404(b), to show “knowledge”. Here McLister admitted “knowledge” of the cocaine. (2) In holding that the relevant factor was the type of activity undertaken rather than the identity of the drug, we held in Batts that the “connecting factor” was that both the prior act and the current offense involved an intent to distribute an illegal drug. Here the conviction for possession of one marijuana cigarette nine years before trial bears little similarity to the current charge of distributing cocaine.
. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” While Rule 404(b) is an “inclu-sionary rule”, it is subject to the balancing test of Rule 403. The trial judge must perform this balancing. E. g., United States v. Sangrey, 586 F.2d 1312, 1314 (9 Cir. 1978).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there 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.
CITIZENS FOR ALLEGAN COUNTY, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, City of Allegan, Michigan, Consumers Power Company, Intervenors.
No. 21842.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 16, 1968.
April 29, 1969.
Mr. William I. Harkaway, Washington, D. C., for petitioner.
Mr. David F. Stover, Atty., Federal Power Commission, with whom Messrs. Richard A. Solomon, General Counsel, Peter H. Schiff, Solicitor, and Drexel D. Journey, Asst. General Counsel, Federal Power Commission, were on the brief, for respondent.
Mr. Howard E. Wahrenbrock, Washington, D. C., for intervenor, City of Al-legan, Michigan.
Mr. George F. Bruder, with whom Messrs. Thomas M. Debevoise and Ernst Liebman, Washington, D. C., were on the brief, for intervenor, Consumers Power Company.
Before Danaher, Wright and Leventhal, Circuit Judges.
Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969.
LEVENTHAL, Circuit Judge:
The central question on this appeal is) whether petitioner was denied the hearing to which it is legally entitled by the procedure followed by the Federal Power Commission (FPC) in issuance of orderi authorizing acquisition of the electric system of Allegan City Light Depart • ment and authorizing transfer of i. license of the Calkins Bridge Project, a dam and power house on the Kalamazoo!) River. Petitioner is a citizens group, the Citizens for Allegan County, Inc. (Citizens). Intervenors are the acquiring company, Consumers Power Company (Consumers) and the former owner of the facility and license, the City of Alle-gan, Michigan (City). Although we conclude that the orders should be affirmed, the questions are not free from difficulty, and our ruling is narrowly confined to the facts and circumstances before us, to which we now turn.
Prior to 1968 the City owned and operated its electric system — consisting of generating facilities, a 2,550 kw hydroelectric plant at the Calkins Bridge Project and a 4,576 kw diesel plant, and the transmission and distribution facilities necessary to service 1,822 customers in the Allegan, Michigan, area. The City’s electric system was not interconnected with any other system, and generated its own energy requirements. Early in 1966, the City began seeking an interconnection with some other electric system from which it could purchase power. After receiving proposals from Consumers and from Wolverine Electric Cooperative, the City Council decided to consider an offer by Consumers to purchase the entire system from the City. The resulting agreement, dated December 5, 1966, for the sale of the City’s system to Consumers for $1,785,000, was submitted to a referendum election held January 18, 1967, which resulted in a vote — 798 in favor of the sale, and 438 against— that satisfied the 60% vote requirement of the City Charter.
Applications were made to the FPC on June 9, 1967, a joint application by the City and Consumers for approval of the license transfer for the Calkins Bridge Project as required by § 8 of the Federal Power Act, and an application by Consumers for approval of the merger under § 203(a) of the Act.
On July 12, Citizens filed a petition in opposition to the sale, seeking leave to intervene as a party, with the right to produce evidence, cross-examine witnesses and be heard on brief and oral argument. This petition to intervene was answered by Consumers and the City; it was amended; and the amendment was answered by the applicants. On January 29, 1968, the FPC issued an order granting Citizens intervention, and simultaneously issued orders approving the license transfer and the merger of facilities. Citizens filed a petition for rehearing which was denied, and then petitioned this court to review the orders of the FPC.
I
The Citizens group was entitled to intervene and to have a meaningful opportunity for hearing in order to oppose the applications of Consumers and the City. It gives us pause, then, to see that when the Commission granted intervention it simultaneously closed out the proceeding without any further presentation from the intervenor. This is indeed “disturbing” — the word used by Commissioner Ross in dissenting from this abbreviated procedure. The use of such a procedure puts a heavy burden on the agency to demonstrate that its procedure comported with fairness and requirements of law.
However, the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing. The precedents establish, for example, that no evidentiary hearing is required where there is no dispute on the facts and the agency proceeding involves only a question of law.
An analogy is sometimes drawn from the court rules which provide summary judgment procedure for the cases that involve only legal issues and no bona fide disputed questions of fact, where it is quite clear what the truth is and there is really no issue to try.
This analogy calls to mind, however, that even in court litigation there are limitations on use of summary procedure, limitations that may usefully delineate, and restrict, the appropriate use of abbreviated procedures by administrative agencies required to act after opportunity for hearing.
For example summary procedures are held to have only limited scope in antitrust litigation. When that approach was first put forward, reference was made to the inappropriateness of summary procedures for an area of law “where motive^ and intent play leading roles?’ The same principle was also applied, however, to an area not turning on intent when the Court, faced with a novel legal issue, decided it was inappropriate “to reach a conclusion on the bare bones of the documentary evidence,” and determined to consider its disposition in the light of a trial developing more information as to the actual impact on competition of the arrangements under attack. White Motor Co. v. United States, 372 U.S. 253, 259, 263-264, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). Similar considerations may be pertinent when an agency is considering approval of a merger or other issues of consolidation of control. These and other questions of public interest confronting an administrative agency will often be illuminated by an exploration in greater depth than can be provided simply by pleadings and documents.
The burden of justification resting on the Commission is even heavier in a case like this where the agency not only failed to notice an evidentiary hearing, but disposed of the matter without even brief or argument from the petitioner.
Yet in the particular case we affirm, not without some hesitancy, because the unique setting includes a political decision made by the City coupled with the weakness of the Citizens’ allegations. We conclude that the information" presented to the FPC in the applications, exhibits, affidavits, intervention petition and other pleadings, developed the salient facts of the dispute to a sufficient depth and detail that the Commission was enabled to perceive, define, and resolve the various strands of public interest. It is important that the Commission’s opinion addressed itself to each of the problems raised by petitioner and set forth its reasons for concluding that the public interest lay in approval of the merger. Eeviewing the Citizens’ assertions as well as the setting of the case, we cannot say the Commission abused its discretion either in its conclusions or its procedure, though we in no way endorse the latter. We also feel that the matter was clearly enough presented and apprehended, and that absent some additional allegations or showing no further procedure was required.
II
The applications of Consumers and Al-legan stated, inter alia, that the acquisition would make possible removal of duplicate distribution facilities; that it would end the hazardous isolated status of Allegan; and that Consumers would establish a service headquarters in Al-legan with 20 employees and a payroll of about $200,000 a year, the number of these employees to increase to about 40 in the future.
The issues raised by Citizens were; (1) there were irregularities in the election approving the sale; (2) the acquisition would result in increased electric rates for Allegan residents; (3) the effect of Consumers’ accounting would result in increased costs; (4) the City of Allegan was overborne by Consumers Power on the deal; (5) Consumers Power earned a rate of return higher than authorized by the Michigan Public Service Commission; (6) the transfer of the hydroelectric project would harm the recreational use and water level of Lake Allegan; and (7) in both its petition to intervene and its petition for rehearing, Citizens asserted that alternative courses could be followed — there was no need to sell since ample power existed and an interconnection could be had through a purchase agreement as offered by Wolverine Electric; and if the system were sold, there should be a repurchase agreement covering the hyroelectric plant.
A. Significance of City’s Election and Political Decision
A unique feature of this case, significantly supporting the Commission’s course both on the merits and procedure, is the fact that the City, through its council and its citizens on referendum, has made a political determination to increase the extent and reliability of its electric system, to entrust that responsibility to Consumers, and to get the municipality out of the electric business.
The FPC was aware that its role was not a mere “ministerial one” even though the City had made its choice. As it stated in denying rehearing:
it is clear that we would be concerned if the proposed acquisition by a public utility would impair reliability of service or would inherently diminish the potentiality for increased service at the lowest reasonable rates, or was at so low a price as to indicate coercion by the buyer or at so high a price as to impair the financial status of the purchaser. * * * [W]e would also be concerned if there were indications that significant competition between the acquired system and the purchasing utility was being eliminated by the merger, without compensating public benefits which otherwise were not likely of achievement.
Yet the Commission correctly pointed out that the over-all balance of public interest involves not only an economic balance but also a political determination of a city council and electorate which “includes other considerations which cannot be quantified, of political and economic philosophy, management capability, governmental priority, etc.”
There is considerable overlap in the fields of vision of the FPC and the City. Both are concerned, for example, with the direction and extent to which the cost and rates of utility service may be changed as a result of the transfer. But there is also a difference in their focus on public interest determinations. The FPC is not interested alone in economic costs. It must consider other elements of the publieinterest, including specifically, here, the impact on the recreational use of the lake. The City has an even broader outlook. It may properly consider benefit to other public uses having no nexus whatever to the electrical system as such- — e. g., the possibility of devoting the proceeds to schools, or hospitals, etc. Cities as well as individuals may rightly decide that their over-all interests are served better by renting than buying, even though the benefits of having capital for other purposes are subject to an offset in the need to pay economic rent and profit (here a return regulated now by a state commission).
In this vortex of factors affecting the public interest we think the Commission was entitled, in its determination of public interest, to accord significant weight to the determination made by the city council, and electorate, if carried out with fair procedures. The City’s determination was not made decisive, nor could it be. Thus the Commission must take into account the impact of the proposal on consumers who were not voters — here commercial customers. But lit is appropriate to accord more latitude for summary Commission procedures where a public interest determination has been made by a city, at least where, as here, the Commission has carefully analyzed the assertions of those intervening to upset that determination and has found in these allegations significant deficiencies and inadequacies. A greater duty of inquiry in depth may be applicable in a case where the Commission was the sole official guardian of the public interest.
B. Review of Citizens’ Allegations and FPC’s Comments
It is with this framework in mind that we take up, seriatim, the assertions of Citizens, and conclude that Citizens did not allege sufficient facts, or likelihood of discovery of facts, to require reversal of either the policy determination made by the FPC or its procedure.
1. Alleged Election Irregularities: If, of course, petitioners could undercut the validity of election (or the city council action it asserts was overborne, see paragraph 4 below) the special factor of this case would be destroyed. However, the kind of showing necessary to undermine a vote would hardly seem to be proffered by a claim that the ballot did not properly present the “proposition” as required by the City Charter because the price was not on the ballot. Compare Kohler v. Tugwell, 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969).
The claim that Consumers charged election expenditures as operating expenses — an accounting entry easily reversible, if improper — would not invalidate the vote. Citizens also says the ads of Consumers were misleading in asserting protection of water level. The FPC set water level requirements in the license on the basis of independent studies, and future approval of the FPC is needed before Consumers Power can alter these license requirements.
The FPC also said it was not authorized to pass on election irregularities. While the FPC may not make a binding adjudication on them, it does not mean that the FPC cannot take them into its consideration. However, there was no effort here to invoke the conventional state procedures available to challenge an election. And the asserted “irregularities” were limited in significance. We certainly are not persuaded that a hearing concerning the election was required.
2. The Balance of Economies: Petitioner’s second point is that the higher rates to be paid by the consumers and the loss of the profits the City had made operating the electric system will not be offset, as asserted by Consumers, by the taxes now to be collected on the facilities and interest from the 1.7 million dollars. Citizens assert the sale means an annual loss, but it reaches this conclusion by looking at the cash flow of the electric system, and failing to provide deductions for depreciation reserve and interest payments. The Commission’s decision did not find as fact that the sale would result in a net gain, it merely stated that Consumers had made that assertion. In denying rehearing the Commission, in its footnote 1, decried as unrealistic the accounting procedure used by Citizens. More importantly, it concluded
Thus [because of the political determination made by the city council and voters] even if, after hearing * * * we were to determine that the financial gains to the City, as a municipal body, from selling the system were outweighed by the losses, we would not believe it appropriate to prevent the City from choosing to get out of the electric business.
******
In short, we conclude that the matters over which the petitioner would have us take cognizance and with respect to which it seeks an evidentiary hearing lie peculiarly within the area where Allegan and its citizenry is entitled to make its own determination. Furthermore, even assuming the validity of the factual allegations regarding the financial gains and losses to the City, those obligations do not present a basis for concluding that the proposed acquisition is contrary to the public interest. (Bracketed material added.)
This is consistent with the position taken by the Commission in its original determination:
The electorate of Allegan chose the somewhat higher rates of Consumers in return for what they apparently feel are adequate offsetting benefits. * * [while] we have independent responsibilities to determine the appropriateness of the acquisition and are not bound by the results of the special election by the City of Allegan. * * Looking at the losses alleged by the intervenor and the benefits to the City resulting through increased tax revenue, interest on investment of the purchase price [undisputed facts], enhanced electric system reliability, and considering the entire record before us, we find that on balance the transaction is consistent with the public interest. (Bracketed material added.)
It is not within our province to consider whether we would have made the same determinations at the agency level. Our limited role as a court of review requires us to say that we discern no facts that are in dispute, or which have not been accepted as true, that required factual hearing. Nor can we say after, considering the political determination and factors of added reliability, that the Commission was in error in its policy determination regarding the public interest.
8. Accounting for the Acquisition Adjustment: Citizens objected that $400,000 of an acquisition adjustment of $472,181, the amount paid in excess of the depreciated original cost of the facilities, should not be an above-the-line account as Consumers Power proposed. The FPC required that the adjustment be charged to a below-the-line account. Citizens raises no further question on this aspect of the case.
4. The Contention that the City of Allegan Was Overborne by Consumers Power: As with the issue of election irregularities, the significance of the political determination made by the City would be effectively undercut by any showing of coercion or undue influence. However, the facts alleged by Citizens do not suffice for this purpose. Citizens originally claimed that coercion existed in that Consumers offered the City “no reasonable choice other than to sell,” and that Consumers did not offer to supply Allegan with electric energy on reasonable terms. The answering pleading attached as an exhibit a letter to the City Council from Consumers offering to sell power at the company’s standard wholesale power rate. Citizens then amended its petition suggesting coercion in Consumers’ refusal to furnish electric power at a “rate comparable to the offer of Wolverine Electric Cooperative.” We do not see in this even a glimmer of an indication that Consumers has overborn the free choice of the City. At most it is an allegation that the general tariff structure of Consumers means higher rates to the City than Wolverine would charge.
5. Consumers’ Alleged Excessive Return: Petitioners allege that Consumers Power is earning a rate of return higher than allowed by the Michigan Public Service Commission. The FPC, while not accepting this as a verity, stated that assuming arguendo its correctness, the electorate “at worst” chose to pay the higher rate for offsetting advantages, and that this fact did not alter the Commission’s finding that the merger was consistent with the public interest. Citizens asserted in its amended petition to intervene that the Michigan Public Service Commission had failed effectively to regulate electric utilities due to its “inadequate budget and inadequate staff.” While unfortunate, if true, the alleged failure would seem to be remediable elsewhere, and in any event it does not affect the crucial determination by the FPC.
Moreover, it may be assumed, at least arguendo, that a collapse in state regulatory controls that is either documented or notorious would properly be taken into account by a federal agency in determining what is required in the public interest. Compare Atlantic Refining Co. v. Public Service Comm’n of State of New York, 360 U.S. 378, 388-394, 76 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). But it cannot seriously be supposed that a federal agency is required to devote its staff and an evidentiary hearing to an analysis of the effectiveness of a state commission merely because some citizens recite, in terms that are general and eon-clusory, an objection to a city’s willingness to accept the same safeguards that the state law extends generally to consumers.
6. The Alleged Effect on Lake Al-legan: On this issue, as on point 3, it seems that the FPC has not ignored the pleas of Citizens, but has taken effective action in the circumstances. The FPC stated that both Citizens and Consumers were focusing on the wrong issue over whether on not Lake Allegan is presently suited for recreational use, for the important issue is “how can the development of the recreational potential of the Lake be best promoted and effectuated.” The FPC then conditioned its approval upon Consumers’ preparing a satisfactory recreational use plan. It said that petitioners need not fear improvident ultimate disposition of the project since the FPC must approve any future transfer of the license, and that under the Act and regulations, the FPC could proscribe the abandonment or sale of the licensed project without the Commission’s permission. Concerning the desire of Citizens for a re-purchase agreement, the Commission felt that this would give control over disposition of project property to a non-licensee which would be improper. The Commission also conditioned the § 203 approval upon the acceptance by Consumers of the new license which included amendments protecting the lake’s water level, plus conservation, recreational use and public access.
7. Alternative Courses: Citizens argues that the FPC cannot act merely as an arbitrator between two parties, but must discharge its own duty to inquire into the relevant facts concerning the public interest, including possible alternative courses. We agree that the FPC has an active and independent duty to guard the public interest, and that this may require consideration of alternative courses, other than those suggested by the applicant. This does not mean that the FPC must always undertake exhausting inquiries, probing for every possible alternative, if no viable alternatives have been suggested by the parties, or suggest themselves to the agency. We have noted that this case involves sale of an electric system by a city. A sale by a private party would have presented a situation devoid of a prior determination of public interest served by the sale, and would have called on the FPC to make more intensive inquiry before finding the sale consistent with the public interest. Here we have a legitimate political determination by the City of Allegan and its electors — the owners, and to a great extent the consumers of the electric power system. Their choice to stop operating the electric system limits the viable alternatives left open.
Citizens did not suggest any possibilities that had not already been rejected by the City, other than a manifestly inadequate reference to a vague and “undisclosed industrial entity” that as-sertedly might have been adapted to safeguard the use of the lake. In this context we cannot say that the FPC stands condemned for failure to give adequate hearing because of the possibility of alternatives.
Citizens’ brief on appeal contains, in addition to assertions on the balance of economies, alternatives, and misuse of the lake, various points made in rather summary fashion such as the lessening of competition, unclarity of whether and what duplicate facilities will be removed, and the fact that not all the electric consumers were voters.
These points are extremely bare and sketchy and they probably fall within the ambit of our prior discussion upholding the FPC’s disposition. But if not, they cannot receive separate attention because they were not set forth in the petition for rehearing filed with the Commission, and hence, under section 313 of the Act, cannot be urged to this court.
Ill
We revert for amplification to a point that concerns us, that the agency not only failed to notice an evidentiary hearing, but failed to accord any other opportunity for presentation of views. An agency concerned with public interest would not be opening the door to significant delays or drain of resources if it were to provide opportunity to a petitioner to file a memorandum setting forth his position (and proffer) on the issues of fact and law he deems controlling.
Light without heat may be obtained from an on-the-record conference procedure — partaking of the nature of a pre-hearing conference but without the notice of hearing — conducted by a member of the staff or possibly a hearing examiner. This would permit a meaningful exploration of possible public interest considerations without the rigidity and embroilment of an evidentiary hearing.
We accept the procedure followed here of shutting off the petitioner without any further presentation because we think it manifest that the document denominated petition for intervention was also, in substance, a brief and written argument. It is possible, as petitioner correctly notes, that a petition for intervention may fall far short of the presentation on the merits, facts, law or both, contemplated by the petitioner for subsequent delivery. And an intervenor should not be prejudiced merely because his petition to intervene contained some argumentation relating to the merits in order to show seriousness of purpose. But here petitioner has given no indication of any argument or presentation omitted from consideration because of the procedure followed. No proffer has been made to the agency or this court either in the form of motion for leave to file additional evidence or otherwise.
We are left with the over-all conviction that petitioner has put together a number of objections that have a theoretical predicate but are of no substantial moment in the particular case.
IV
We stepped over certain jurisdictional matters raised by intervenor at the threshold. We reject the claim that the appeal should be dismissed for lack of showing of aggrievement. Various decisions recognize the broad principles of standing applicable to consumers of a service under regulatory control. Care must be taken to avoid confusing the issue and dismissing a consumer’s claim on jurisdictional grounds when the real grounds of rejection go to the merits. If the Citizens-consumers had been right on the merits of their claims they would plainly have been aggrieved.
As for intervenor’s claim that our recent decisions show lack of jurisdiction reaching back to the FPC threshold, this issue presents various difficulties, as indicated in the footnote. Since such difficulties may be curtailed or eliminated if the jurisdictional issue arises again, by focusing the issue and the record on the problem at' the outset, we think it appropriate to invoke the doctrine under which, in appropriate cases, a court' may bypass a jurisdictional issue without decision and dispose of the case by a ruling on the merits.
Affirmed.
. 16 U.S.C. § 801 (1964).
. 16 U.S.C. § 824b (a) (1964).
. Though captioned in only one docket the intervention obviously was directed to both applications.
. Section 203(a) of the Act, 16 U.S.C. § 824b(a) (1964), provides that when the Commission is considering the grant of approval to a merger of electric facilities within its jurisdiction, the Commissioner must give notice to the state’s Governor, affected state commissions, and “to such other persons as it may deem advisable. i After notice and opportunity for hearing, i if the Commission finds that the proposed disposition, consolidation, acquisition, or control will be consistent with the public interest, it shall approve the same.”
While there is no similar wording in the statute governing transfers of licenses, the Commission does not claim that the two dockets can be meaningfully separated for purposes of consideration of the public interest.
. United States v. Storer Broadcasting Co., 351 U.S. 192, 202-205, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Persian Gulf Outward Freight Conference v. FMC, 126 U.S.App.D.C. 159, 164-165, 375 F.2d 335, 340-341 (1967); Virginia Elec. & Power Co. v. FPC, 351 F.2d 408, 410 (4th Cir. 1965); Producers Livestock Marketing Ass’n v. United States, 241 F.2d 192, 196 (10th Cir. 1957), aff’d sub. nom. Denver Union Stockyard Co. v. Producers Livestock Marketing Ass’n, 356 U.S. 282, 78 S.Ct. 738, 2 L.Ed.2d 771 (1958). Cf. Pikes Peak Broadcasting Co. v. FCC, U.S.App.D.C., (Nos. 22023-24 March 24, 1969); Groendyke Transport Inc. v. Davis, 406 F.2d 1158 (5th Cir., decided January 2, 1969); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966).
. See Rule 56 of the Federal Rules of Civil Procedure; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).
. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed. 2d 458 (1962); Levin v. Joint Comm’n on Accreditation of Hospitals, 122 U.S.App.D.C. 383, 386, 354 F.2d 515, 518 (1965).
. Cf. Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968); City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956).
. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966).
. Cf. Pittsburgh v. FPC, supra note 8.
. Commissioner Ross, dissenting, felt a hearing should be had on the balance of economies, recreational benefits (discussed in paragraph 6 below), and on the terms and conditions of the § 203 decree. He was disturbed with the precedential tones of the case since intervention was permitted in the same order determining the merits.
. Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Northern Natural Gas Co. v. FPC, supra note 8; Pittsburgh v. FPC, supra note 8; Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 617-620 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966).
. Compare Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968); Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966); Bebchick v. Public Util. Comm’n, 109 U.S.App.D.C. 298, 287 F.2d 337 (1961): Pittsburgh v. FPC, supra note 8.
. As for Utility Users League v. FPC, 394 F.2d 16 (7th Cir. 1968), cert. denied, 393 U.S. 953, 89 S.Ct. 377, 21 L.Ed.2d 365 (1968), cited by intervenors, we find the approach of the concurring opinion more persuasive than the majority.
. Consumers raises the jurisdictional objection that under our ruling in Duke Power Co. v. FPC, 130 U.S.App.D.C. 389, 401 F.2d 930, its purchase of the City’s facilities was not subject to the Commission’s approval, since this was an acquisition of facilities utilized solely in the local distribution of electrical energy for retail sale.
This objection was not raised before the Commission. A question arises whether it may be presented for the first time in this court, at least for the purpose of sustaining (not attacking) a Commission order.
The brief of counsel for the Commission argues that the case is not moot since part of the facilities transferred were classed under the City’s license as “primary lines,” see § 3(11) of the Act, and with the function of transmitting energy generated at the project to the distribution system, and while the City operated in an isolated manner the acquisition by Consumers might result in a situation where these transmission lines were subject to use for interstate transmission of energy.
In this aspect of the ease the jurisdictional issue may turn on factual matters that were not developed in the record as made, and hence would not be suitable for disposition on the papers as filed.
It is also noted that the proceeding before the Commis ion involved its undisputed jurisdiction to approve transfer of the license of the hydroelectric project. The Commission might have granted permissive intervention (though denying relief) on a petition objecting solely to transfer of the license. Citizens may be entitled to use this ground to support the intervention as granted. If so at least some of the issues on the merits would be before us anyhow. Under the circumstances we have proceeded to the merits without further consideration of this jurisdictional issue.
. See Pan American World Airlines v. CAB, 129 U.S.App.D.C. 159, 162, 392 F.2d 483, 486 (1968), and note 4 for cited authorities.
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_applfrom
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
ELKHART ENGINEERING CORPORATION, Appellant, v. DORNIER WERKE, Appellee.
No. 21411.
United States Court of Appeals ' Fifth Circuit.
April 13, 1965.
Albert W. Copeland, Montgomery, Ala., Vincent P. McCauley, Columbus, Ga., John C. Godbold, Montgomery, Ala., Godbold, Hobbs & Copeland, Montgomery, Ala., McBreen & Tobin, Chicago, 111., of counsel, for appellant.
James Garrett, Montgomery, Ala., Rushton, Stakely & Johnston, Montgomery, Ala., of counsel, for appellee.
Before RIVES, WISDOM, and BELL, Circuit Judges.
GRIFFIN B. BELL, Circuit Judge.
Elkhart, a Wisconsin corporation, brought a diversity suit under 28 U.S. C.A. § 1332 against Dornier Werke, a corporation organized under the laws of the Federal Republic of Germany. Elk-hart does no business in Alabama. Dor-nier Werke does no business in the United States except for the activity which gave rise to this suit. Service was had upon Dornier by serving the Secretary of State of the State of Alabama under the provisions of Title 7, § 199(1) of the Code of Alabama, the adopted federal law for service of process. This provision of the Alabama Code permits service of process on the Secretary of State in actions against a non-qualifying, non-resident corporation accruing from any business or character of work done in the state. The District Court granted the motion of Dornier to quash the return of service of process and this appeal is from that order. See Rosenberg Bros. & Co. v. Curtis Brown Co., 1923, 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372, and 6 Moore’s Federal Practice, § 54.12(1), p. 114, demonstrating appealability of the order.
The twofold question presented is whether service may be perfected (1) under the terms of the Alabama statute, and (2) in view of the due process requirements of the Fourteenth Amendment on Dornier, a foreign corporation not qualified to do business in Alabama, in a suit arising from the commission of a tort by Dornier during the conduct of a single business transaction within the state.
The relevant facts are not disputed. Elkhart purchased an aircraft from Dor-nier in Germany and agreed, it being the only aircraft of its type in the United States, that it would be available to Dor-nier for sales demonstration purposes. In September 1962 Dornier wrote Elk-hart as follows:
“Since we are contemplating a demonstration of the DO 28 aircraft to American authorities, we should be very much obliged if you would assist our efforts by placing your aircraft at our disposal for this purpose. Demonstrations are planned to commence in the course of the next month, whereby the aircraft will be flown by one of our pilots.”
Elkhart agreed to the request, and Dornier sent one of its master mechanics, from Germany to Wisconsin, where the aircraft was located, to inspect it. He was joined there by one of Dormer’s test pilots, and shortly thereafter its; sales manager also arrived. The three spent about a week in Wisconsin, departing in October 1962, to carry out a series; of demonstrations throughout the United States. In December 1962 the aircraft was flown by the test pilot to Ft. Rucker, Alabama where it was to be used for demonstration purposes. Dornier stated that the sole purpose of taking the aircraft to Ft. Rucker was to ascertain if sufficient interest existed in civil or governmental organizations for the purchase; of similar aircraft. The plane crashed there while being demonstrated by the test pilot. The master mechanic was also* present at the time, and the sales manager who had left earlier in the day returned to the scene immediately after the* crash. The suit-by Elkhart was for damage to the aircraft.
At the time of the .crash Dornier had possession of Elkhart’s aircraft, and it was being demonstrated for Domier’s own business purposes. However, on the motion to quash, Dornier contended that its presence in Alabama for this purpose was not sufficient to subject it to the jurisdiction of Alabama courts to answer for a tort arising out of the demonstration. This contention rested on the argument that Dornier was not doing business in Alabama at the time suit was filed within the minimum contracts or substantial connection with the state doctrine of International Shoe Company v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057; and McGee v. International Life Insurance Company, 1957, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. The District Court was persuaded to this view. No procedural due process fault is alleged.
I.
We must first dispose of the argument, which we deem to be implicit in Dormer’s position, that § 199(1), supra, by its terms, is not a statutory base for service absent a series of business activities in the state amounting to continuity. Principal reliance to support this argument is placed on Mississippi Wood Preserving Co. v. Rothschild, 5 Cir., 1953, 201 F.2d 233, where we construed a Mississippi statute similar in terms to exclude service in a tort suit where the activities of the defendant within Mississippi, although the tort resulted from them, were few and sporadic. See also Davis-Wood Lumber Co. v. Ladner, 1951, 210 Miss. 863, 50 So.2d 615. We will examine the Alabama statute in the light of this argument.
The Alabama law provides a statutory basis for service on non-resident corporations in three situations. First, jurisdiction may be acquired over a non-resident corporation which is transacting business in the state by serving the agent of the corporation appointed for that purpose, or if no agent is appointed, by serving the Secretary-of State. Title 7, §§ 192, 193, Alabama Code. Second, the Alabama Non-Resident Motorist Statute provides that jurisdiction may be acquired over non-resident motorists in suits for torts committed on the highways by serving the Secretary of State. Title 7, § 199, Code of Alabama. And in Dealer’s Transport Co. v. Reese, 5 Cir., 1943, 138 F.2d 638, we held that this statute applied to a non-qualifying non-resident corporation even where there was an express finding that the corporation was not doing business in Alabama. The third situation arises under the statute with which we are concerned, § 199(1). It is separate and distinct from §§ 192 and 193. It provides that non-resident, non-qualifying corporations which “do any business or perform any character of work or service” in Alabama may be served through the secretary of state in suits accruing or resulting from such business, work, or service. The statute does not speak in terms of transacting or carrying on business as is the ease with §§ 192 and 193. On the other hand, service under §§ 192 and 193 is not limited to actions accrued or resulting from the particular business or work done in the state. In short, these statutes appear to serve separate functions and to apply in different situations.
Section 199(1) in pertinent part provides :
“Any non-resident * * * corporation not qualified * * * as to doing business herein, who shall -do any business or perform any character of work or service in this state shall, "by the doing of such business or the performing of such work, or services, be deemed to have appointed the secretary of state, or his -successor or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action accrued, accruing, or resulting from the doing of such business, or the performing of such work or service, or relating to or as an incident there^of, by any such non-resident, or * * * its * * * agent, servant, or employee.”
The Supreme Court of Alabama has equated § 199(1) with the Alabama NonResident Motorist Statute which of course, contains no requirement of “doing business” as a prerequisite to jurisdiction. Armi v. Huckabee, 1957, 266 Ala. 91, 94 So.2d 380. There service under § 199(1) was sustained over California residents whose connection with Alabama was through ownership of three apartment houses which were rented to the public by an Alabama real estate agent. The suit was for property damage resulting from a fire. But in Ex parte Emerson, 1960, 270 Ala. 697, 121 So.2d 914, service under the section on a Texas resident was quashed. He was sued for injuries sustained from the use of a medicine. The sales of the medicine in Alabama had been made by either independent contractors or purchasers from the defendant, and the court held that therefore the defendant had done no business nor performed any work or service in the state.
The construction of' this section was once again before the Supreme Court of Alabama in .New York Times Co. v. Sullivan, 1962, 273 Ala. 656, 144 So.2d 25; reversed on other grounds, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and we think the question was there settled adversely to Dornier. Unlike the narrow construction placed on the Mississippi statute, supra, here the Supreme Court of Alabama stated that the scope of substituted service under this statute was as broad as the permissible limits of due process. And see also Calagaz v. Calhoun, 5 Cir., 1962, 309 F.2d 248, where the New York Times case on this point was followed. We thus construe the provisions of § 199(1) to mean that service of process may be perfected on a nonresident corporation in a suit claiming damages on account of a tort which arose out of a single business transaction in Alabama. Being of this view, we proceed to the federal constitutional question involved. This was the ground of the decision of the District Court.
II.
Since the question presented involves federal due process, federal authorities are controlling. Pennoyer v. Neff, 1878, 95 U.S. 714, 741, 24 L.Ed. 565, established the proposition that the due process clause of the Fourteenth Amendment is violated when a court renders a personal judgment against a nonresident without having jurisdiction over him, and that jurisdiction may not be acquired by service of process upon a defendant outside the jurisdiction or by publication, absent assent in advance to such mode of service. This principle was modified in International Shoe Company, and McGee v. International Life Insurance Co., supra, into the rule that due process requires only that in order to subject a person to an in personam judgment, if he be not present in the territory of the forum, he have certain minimum contacts or substantial connection with it. The District Court, applying this principle to the undisputed facts, concluded that the single act of business embraced in demonstrating the aircraft failed to meet the test.
We take a different approach to the question and hold that under the circumstances of this case, due process is not violated by subjecting a non-resident, non-qualifying corporation to the jurisdiction of a forum in which it has committed a tort in the performance of a single business transaction. Our reasoning begins with and centers around the commission of the tort in the State of Alabama. Since Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, the states have been permitted to exercise jurisdiction over non-residents, including corporations, for torts committed on the highways of the forum state under the so-called non-resident motorist statutes. And, as we bave noted, whether a corporation was also doing business at the time is irrelevant to the exercise of this jurisdiction. Dealer’s Transport Company v. Reese, supra.
The principle of Hess v. Pawloski was recognized in International Shoe Co. v. Washington, where the traditional jurisdictional concepts of presence, consent, and domicile were replaced by the minimum contacts or substantial connection with the forum doctrine. The Hess case was treated as sui generis because of the nature of the acts involved and the circumstances of their commission. The court in the McGee case, supra, cited Hess v. Pawloski as standing for the substantial connection with the forum doctrine. In Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, the court spelled out the additional element that in every case where jurisdiction under this doctrine is claimed, there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” This element likewise appertains to and is found in this type of tort case.
Jurisdiction being thus clear under the minimum contacts doctrine over suits for torts committed on the highway of a forum state, we must determine what extension may be made of the rule on its underlying reasoning. It has already been extended to include jurisdiction over non-resident, non-qualifying corporations in actions for torts committed within the forum state where process is served under the non-resident watercraft statutes. For example, in Tardiff v. Bank Line, Ltd., E.D.La., 1954, 127 F.Supp. 945, service on a British corporation under the Louisiana Watercraft statute, LSA-R.S. 13:3479, was sustained. Judge Wright reviewed the statute in the light of due process requirements and the minimal contacts doctrine of International Shoe and McGee, but-relied on Hess v. Pawloski, supra, and the analogy between the Watercraft statute and Nonresident Motorist statutes to find that the Louisiana statute did not offend “traditional notions of fair play and substantial justice.” International Shoe, supra. This case involved an action for the negligent death of a Louisiana resident working as a ship repairman on the steamship of the British corporation at dock in New Orleans. In Goltzman v. Rougeot, W.D.La., 1954, 122 F.Supp. 700, a suit to recover for the negligent loss for a barge load of scrap metal, service was perfected on the non-resident defendant by serving process upon the Louisiana Secretary of State pursuant to the Louisiana Watercraft statute, supra. Judge Dawkins sustained the service, pointing to the similarity between the Watercraft statute and the Louisiana Non-Resident Motorist statute, LSA-R.S. 13:3474, 13:3475. He held that waterways and highways are arteries of commerce and that any difference was in degree, and insufficient for holding that the Watercraft statute violated due process of law- He noted that the states have a wide discretion in determining when and under what circumstances they will exercise their police power. See also Franklin v. Tomlinson Fleet Corp., N.D.Ill., 1947, 158 F. Supp. 850, and Frase v. Columbia Transportation Company, N.D.Ill., 1957, 158 F.Supp. 858, both sustaining service on a non-resident corporation under the Illinois Non-Resident Watercraft statute in the face of due process attacks.
The reasoning of this court in Sugg v. Hendrix, 5 Cir., 1944, 142 F.2d 740, is appropriate. There a citizen of Mississippi brought suit in the District Court of Mississippi against a non-resident Louisiana corporation under a statute of the same type as § 199(1) of the Alabama Code with -which we are concerned. The court noted that the Mississippi statute was similar in form and substance to the non-resident motorist statutes. The order of the District. Court quashing service was reversed. It appeared that the defendant was engaged in levee construction work in Mississippi and that plaintiff’s injury arose out of that work. The court adverted to the non-resident motorist statutes, and took the view that these statutes were based on state police power over torts committed within the state. It was pointed out that a state’s police power was not limited to making regulations for the safety of persons using the highway, but might be extended to other acts of non-residents within the forum jurisdiction involving activity of a character dangerous to life or property. The court took judicial notice of the fact that heavy construction work of the type being performed by the defendant was of that character.
This case comports with the American Law Institute rule, § 23, Restatement of Judgments, as follows:
“A court by proper service of process may acquire jurisdiction over an individual not domiciled within the State who does acts * * which are of a sort dangerous to life or property as to causes of action arising out of such act or such ownership, if a statute of the State so provides at the time when the cause of action arises.”
From the foregoing authorities, it is clear that the principle of Hess v. Paw-loski has been extended to cover suits arising out of activity within the state which is dangerous to life and property, even though only a single isolated transaction is involved. Moreover, there is substantial authority that a state may properly assert jurisdiction over any tort committed within its borders, regardless of whether the tort arises out of activity considered dangerous. In Developments in the Law: State Court Jurisdiction, 73 Harv.L.Rev. 909, 926 (1960), the following statement is made:
“There is little doubt that a corporation is amenable to state jurisdiction in a tort action even though it has carried on only isolated or sporadic activity within the forum state, so long as the alleged tort grew out of that activity.”
The authors read the McGee case as giving “implicit constitutional approval” to statutes basing jurisdiction upon the commission of a single tortious act in the forum state. 73 Harv.L.Rev. at 1003. And in the following cases, jurisdiction based on the commission of a single tortious act was sustained without reference to whether dangerous activity was involved. Smyth v. Twin State Improvement Corp., 1951, 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193; Nelson v. Miller, 1957, 11 Ill.2d 378, 143 N.E.2d 673; Owens v. Superior Court, 1959, 52 Cal 2d 822, 345 P.2d 921, 78 A.L.R.2d 388; Peters v. Robin Airlines, 1953, 281 App. Div. 903, 120 N.Y.S.2d 1 (dictum). See also notes at 25 A.L.R.2d 1202, 78 A.L.R. 2d 397.
The rationale of in personam jurisdiction over a non-resident committing a tort in the forum state was well stated by Judge Learned Hand in Kilpatrick v. Texas & Pacific Ry. Co., 2 Cir., 1948, 166 F.2d 788, 791, a case involving a cause of action arising outside the state of the forum:
“ * * * It is settled that, given the proper procedural support for doing so, a state may give judgment in personam against a non-resident, who has only passed through its territory, if the judgment be upon a liability incurred while he was within its borders. That, we conceive, rests upon another principle. The presence of the obligor within the state subjects him to its law while he is there, and allows it to impose upon him any obligation which its law entails upon his conduct. Had it been possible at the moment when the ^putative liability arose to set up a pie-powder court pro hac Vice, the state would have had power to adjudicate the liability then and there; and his departure should not deprive it of the jurisdiction in per-sonam so acquired. On the other hand, in order to subject a non-resident who passes through a state to a judgment in personam for liabilities arising elsewhere, it would be necessary to say that the state had power so to subject him as a condition of allowing him to enter at all, and that for this reason his voluntary entry charged him generally with submissions to the courts. As a matter of its own law of conflicts of law, no court of one country would tolerate such an attempt to extend the power of another; and, as between citizens of states of the United States, constitutional doubts would arise which, to say the least, would be very grave, and which we need not consider.”
In line with the analysis set forth in International Shoe and McGee, it is apparent that a state has a substantial interest in providing a forum to redress tortious injuries committed within its borders by non-residents. We do not feel that this interest is limited to torts arising from dangerous activities. The concept of what is “dangerous” is a slippery one at best, and in our view, the due process clause does not require such nice distinctions. When a non-resident has voluntarily entered a state and invoked the protections of its laws, it does not in our view offend “traditional notions of fair play and substantial justice” to require the non-resident to answer in the courts of that state for any tortious acts committed while there. We therefor hold that Alabama may, consistent with the due process clause of the Fourteenth Amendment, assert jurisdiction over a non-resident, non-qualifying corporation in suits on a claim of liability for tortious injury arising out of activity of the non-resident within the state, even though only a single transaction is involved, and regardless of whether the activity is considered dangerous.
In sum, we hold first that § 199(1) of the Alabama Code is sufficient, as a matter of statutory construction, to reach the defendant corporation here. This is an Erie question, and we deem our holding to accord with the view of the Supreme Court of Alabama on the subject. Secondly, we hold that in thus asserting jurisdiction, Alabama has not offended the due process clause. Such jurisdiction, as in the case of jurisdiction over non-resident motorists and vessels, rests on the power of a state to afford remedies against persons committing torts while engaged in activity within the state, albeit during a single business transaction.
Reversed and remanded for further proceedings not inconsistent herewith.
. Rule 4(d) (7), F.R.Civ.P., and see S.S. Philippine Jose Abad Santos v. Bannister, 5 Cir., 1964, 335 F.2d 535.
. The Mississippi cases on the subject are reviewed in Walker v. Savell, 5 Cir., 1964, 335 F.2d 536; and see Mississippi Chemical Corp. v. Vulcan-Cincinnati, Inc., S.D., Miss., 1963, 224 F.Supp. 11, aft. on appeal, Mississippi Chemical Corp. v. Hoechst-Uhde Corp., 5 Cir., 338 F.2d 663 (1964). These cases point to the narrow construction placed on the Mississippi statute.
. This case was decided prior to Davis-Wood Lumber Co. v. Ladner, supra: Mississippi Wood Preserving Co. v. Rothschild, supra; and the ^authorities listed in Footnote 2. The Mississippi service of process statute in question, Title 10, § 1437, Miss.Code 1942, would probably no longer suffice under the Erie doctrine, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to obtain jurisdiction in view of its subsequent narrow construction.
. See Foster, Expanding Jurisdiction Over Nonresidents, 32 Wise. Bar Bull., Sept.Oct. 1958, Supplement, p. 4, where the author summarizes the present approach in the following terms:
“The new, flexible standard * * * comes to this: A state may exercise personal jurisdiction whenever, in the context of our federal system, it is reasonable for the state to try the particular case against the particular defendant. In other words, the modern test depends upon the relation between the state and the particular litigation sued upon. Importance attaches to what, with respect to the action brought, the defendant has caused to be done in the forum state.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
REYNOLDS v. UNITED STATES.
No. 2912.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1934.
Arthur Harrington, of Boston, Mass., for appellant.
Arthur J. B. Cartier, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, IJ. S. Atty., of Boston, Mass., on the brief), for the United States.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge.
On the 6th day of September, 19‘33, Frank Melville Reynolds, setting himself up as a resident of Hull, Mass., filed with the clerk of the District Court for Massachusetts a petition for naturalization in the usual form, in which he stated that ho was born in Charles-town, Boston, Mass., on May 26, 1885; that his last foreign residence was near Six Milo Lake, Canada; that he emigrated to the United States from Montreal, Quebec, Canada, through St. Albans, Vt., on August 27, 1914; that “it is my intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, and particularly to George V * * * of whom at this time I am a subject.”
This petition was filed without the usually required preliminary declaration of intention under the provisions of the Naturalization Act of May 9, 1918-, as amended (8 USCA § 377), which allowed such filing when the petitioner had “resided uninterruptedly within the United States during the period of five years next preceding July 1, 1929,” having during that time, in good faith, because of misinformation, regarded himself a citizen and exercised the rights and performed the duties of such citizen. In the affidavit required by the Department of Labor in such eases he gave the time and place of his birth as sot out in the petition; that he believed that he was and continued to be a citizen of ihe United States “in view of my birth in this country”; that he continued to so believe until May, 1933, when the Registrars of Voters at Hull, Mass., removed his name from the list of eligible voters in Hull on the ground that ho had “become a citizen of Canada, as a result of an application for Canadian citizenship claimed to have been made by me at Prince Rupert, British Columbia, Canada, on or about October 20, 1913”; that he had exercised the following rights and duties of a citizen of the United States: “I was appointed Postmaster at the Nantasket Beach Post Office, Hull, Massachusetts, in February 1916, after having taken a Civil Service examination at Boston, Mass., in 1915. * * * I have served as Postmaster at the Nantasket Beach Post Offihe, Hull, Mass., from February 1916 until the present date.”
When the petition came on for hearing in the District Court, counsel for the petitioner, in the petitioner’s presence, requested the court to deny the petition upon the ground that the petitioner is now a citizen. Among the papers submitted at that time was a photostatie copy of a written oath of allegiance to Great Britain purporting to be, though not conceded by petitioner to be, signed by him. At a later hearing counsel for the petitioner requested the court to rule in substance that the petitioner is entitled to have his status determined by filing a petition for citizenship and having the petition denied at his request on the ground that he is already an American citizen. This request was denied and the petitioner excepted.
The court, in making a final disposition of the case, said:
“I am not prepared to say that a person has the right to file a naturalization petition, reciting that he is an alien, with the intent later to take the position that he is a citizen, and then have his petition denied upon such ground as he requests. It is urged that, unless this can be done there is no way in which a person may have his citizenship established, and that accordingly I ought to find the facts and pass upon a petition, the granting of which the petitioner at no time intended to urge. I find nothing in the Acts of Congress or in Judge Morton’s decision [In re Mary Bates Fitzroy (D. C.) 4 F.(2d) 541] (which as before stated involved an application for leave to file a petition) which requires or warrants such a course. Nor do I feel that it is for the District Court to extend the Fitzroy Case, in view of Judge Morton’s opinion, to eases not presenting the special and unusual circumstances there considered.
“Without passing upon the question whether the petitioner signed an oath of allegiance to Great Britain purporting to bear his signature, or the effect thereof, and without passing upon the matter of the petitioner’s citizenship) the petition is denied on the broad ground that neither at the time it was filed nor at any other time has the petitioner really wanted to have it allowed.”
As said by the Circuit Court for Massachusetts as far back as 1884, “the jurisdiction of the district court, in matters of naturalization, does not depend upon facts stated, but is derived from the statutes of the'United States. Whether the court will grant naturalization papers in a given case depends upon, the facts; but it has jurisdiction over the matter even if the facts be insufficient for a favorable result to the application.” United States v. Walsh, 22 F. 644, 649.
The jurisdiction given the several courts to naturalize aliens involves the filing of a petition as an alien, and it is the duty of the court on the filing of such a petition to determine on all the evidence the facts on which the petition should be either allowed or denied, and to enter judgment accordingly. The applicant in this ease did not withdraw his petition or ask to have it dismissed or disposed of other than on its merits, and we think that'the judgment of the District Court denying it without passing upon the merits was erroneous. By his petition the applicant sought to establish his status [In re Grant (D. C.) 289 F. 814; Petition of Zogbaum (D. C.) 32 F. (2d) 911; In re Fitzroy (D. C.) 4 F. (2d) 541. See, also, In re Guliano (D. C.) 156 F. 426], whether he was a citizen or an alien and that the petition be dismissed or allowed as the fact was found to be. His request that on the evidence the court find he was a citizen and deny the petition was not improper and should not have been so regarded, for the requested finding and ruling would establish his status to be that of a citizen. As the chief issue raised by the petition was his status — a citizen or alien — the determination of the fact one way or the other should be stated in the judgment denying or granting the petition. Had it been determined that the applicant was an alien we cannot conceive that he would have desired any disposition of the petition other than to have it allowed.
The Fitzroy Case, supra, as reported in 4 F.(2d) 541, states that the petition of Mary Bates Fitzroy was “for admission to citizenship.” The original records in' the case show that it was a petition “for leave to file a petition for admission to citizenship,” and the practice of allowing such a petition to be brought was supported on the opinion of Judge Hough in Re Guliano (D. C.) 156 F. 420, 421. The suggestion in the Fitzroy Case that the practice of allowing such a petition to be brought “should be confined to special and unusual eases,” had nothing to do with a straight petition for naturalization; and in the Guliano Case, where the petition was one for leave to file a petition for naturalization, it was held that there was nothing in the naturalization statute “forbidding a preliminary inquiry in cases where it is doubtful whether the applicant can truthfully verify a petition [for naturalization] giving' him any hope of a successful issue,” and that in such a case he should “be permitted to make a .preliminary showing in this regard without the payment of the fees [considerable in amount] attaching to the filing of an application” for naturalization.
The decree of the District Court is vacated, and the ease is remanded to that court for further proceedings not inconsistent with this opinion.
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_casesource
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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 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.
EVANS v. MICHIGAN
No. 11-1327.
Argued November 6, 2012
Decided February 20, 2013
Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, post, p. 330.
David A. Moran argued the cause for petitioner. With him on the briefs were Jonathan B. D. Simon, Richard D. Friedman, and Timothy P. O'Toole.
Timothy A. Baughman argued the cause for respondent. With him on the brief was Kym L. Worthy.
Curtis E. Gannon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Breuer, and Deputy Solicitor General Dreeben.
David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
Justice Sotomayor
delivered the opinion of the Court.
When the State of Michigan rested its case at petitioner Lamar Evans’ arson trial, the court entered a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence of a particular element of the offense. It turns out that the unproven “element” was not actually a required element at all. We must decide whether an erroneous acquittal such as this nevertheless constitutes an acquittal for double jeopardy purposes, which would mean that Evans could not be retried. This Court has previously held that a judicial acquittal premised upon a “misconstruction” of a criminal statute is an “acquittal on the merits [that] bars retrial.” Arizona v. Rumsey, 467 U. S. 203, 211 (1984). Seeing no meaningful constitutional distinction between a trial court’s “misconstruction” of a statute and its erroneous addition of a statutory element, we hold that a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes as well.
I
The State charged Evans with burning “other real property,” a violation of Mich. Comp. Laws § 750.73 (1981). The State’s evidence at trial suggested that Evans had burned down an unoccupied house. At the close of the State’s case, however, Evans moved for a directed verdict of acquittal. He pointed the court to the applicable Michigan Criminal Jury Instructions, which listed as the “Fourth” element of the offense “that the building was not a dwelling house.” 3 Mich. Crim. Jury Instr. §31.3, p. 31-7 (2d ed., Supp. 2006/ 2007). And the commentary to the instructions emphasized, “an essential element is that the structure burned is not a dwelling house.” Id., at 31-8. Evans argued that Mich. Comp. Laws § 750.72 criminalizes common-law arson, which requires that the structure burned be a dwelling, while the provision under which he was charged, §750.73, covers all other real property. Persuaded, the trial court granted the motion. 491 Mich. 1, 8, 810 N. W. 2d 535, 539 (2012). The court explained that the “ ‘testimony [of the homeowner] was this was a dwelling house,’ ” so the nondwelling requirement of § 750.73 was not met. Ibid.
On the State’s appeal, the Michigan Court of Appeals reversed and remanded. 288 Mich. App. 410, 794 N. W. 2d 848 (2010). Evans had conceded, and the court held, that under controlling precedent, burning “other real property” is a lesser included offense under Michigan law, and disproving the greater offense is not required. Id., at 416, 794 N. W. 2d, at 852 (citing People v. Antonelli, 66 Mich. App. 138, 140, 238 N. W. 2d 551, 552 (1975) (on rehearing)). The court thus explained it was “undisputed that the trial court misper-ceived the elements of the offense with which [Evans] was charged and erred by directing a verdict.” 288 Mich. App., at 416, 794 N. W. 2d, at 852. But the court rejected Evans’ argument that the Double Jeopardy Clause barred retrial. Id., at 421-422, 794 N. W. 2d, at 856.
In a divided decision, the Supreme Court of Michigan affirmed. It held that “when a trial court grants a defendant’s motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court’s ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred.” 491 Mich., at 4, 810 N. W. 2d, at 536-537.
We granted certiorari to resolve the disagreement among state and federal courts on the question whether retrial is barred when a trial court grants an acquittal because the prosecution had failed to prove an “element” of the offense that, in actuality, it did not have to prove. 567 U. S. 905 (2012). We now reverse.
H-i 8—f
A
In answering this question, we do not write on a clean slate. Quite the opposite. It has been half a century since we first recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U. S. 141, 143 (1962) (per curiam). A mistaken acquittal is an acquittal nonetheless, and we have long held that “[a] verdict of acquittal... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U. S. 662, 671 (1896).
Our cases have applied Fong Foo’s principle broadly. An acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e. g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462, 467-468 (2005) (collecting cases). And an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U. S. 54, 68-69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict, Rumsey, 467 U. S., at 203, 211; cf. Smalis v. Pennsylvania, 476 U. S. 140, 144-145, n. 7 (1986). In all these circumstances, “the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (internal quotation marks and citation omitted).
Most relevant here, our cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. See ibid., and n. 11; Burks v. United States, 437 U. S. 1, 10 (1978); United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). Thus an “acquittal” includes “a ruling by the court that the evidence is insufficient to convict,” a “factual finding [that] necessarily establishes] the criminal defendant's lack of criminal culpability,” and any other “rulin[g] which relate[s] to the ultimate question of guilt or innocence.” Scott, 437 U. S., at 91, 98, and n. 11 (internal quotation marks omitted). These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals or mistrials. Procedural dismissals include rulings on questions that “are unrelated to factual guilt or innocence,” but “which serve other purposes,” including “a legal judgment that a defendant, although criminally culpable, may not be punished” because of some problem like an error with the indictment. Id., at 98, and n. 11.
Both procedural dismissals and substantive rulings result in an early end to trial, but we explained in Scott that the double jeopardy consequences of each differ. “[T]he law attaches particular significance to an acquittal,” so a merits-related ruling concludes proceedings absolutely. Id., at 91. This is because “[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty,’ ” ibid. (quoting Green v. United States, 355 U. S. 184, 188 (1957)). And retrial following an acquittal would upset a defendant’s expectation of repose, for it would subject him to additional “embarrassment, expense and ordeal” while “compelling him to live in a continuing state of anxiety and insecurity.” Id., at 187. In contrast, a “termination of the proceedings against [a defendant] on a basis unrelated to factual guilt or innocence of the offense of which he is accused,” 437 U. S., at 98-99, i. e., some procedural ground, does not pose the same concerns, because no expectation of finality attaches to a properly granted mistrial.
Here, “it is plain that the [trial court]... evaluated the [State’s] evidence and determined that it was legally insufficient to sustain a conviction.” Martin Linen, 430 U. S., at 572. The trial court granted Evans’ motion under a rule that requires the court to “direct a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction.” Mich. Rule Crim. Proc. 6.419(A) (2012). And the court’s oral ruling leaves no doubt that it made its determination on the basis of “ ‘[t]he testimony’ ” that the State had presented. 491 Mich., at 8, 810 N. W. 2d, at 539. This ruling was not a dismissal on a procedural ground “unrelated to factual guilt or innocence,” like the question of “preindictment delay” in Scott, but rather a determination that the State had failed to prove its case. 437 U. S., at 98, 99. Under our precedents, then, Evans was acquitted.
There is no question the trial court’s ruling was wrong; it was predicated upon a clear misunderstanding of what facts the State needed to prove under state law. But that is of no moment. Martin Linen, Sanabria, Rumsey, Smalis, and Smith all instruct that an acquittal due to insufficient evidence precludes retrial, whether the court’s evaluation of the evidence was “correct or not,” Martin Linen, 430 U. S., at 571, and regardless of whether the court’s decision flowed from an incorrect antecedent ruling of law. Here Evans’ acquittal was the product of an “erroneous interpretation of governing legal principles,” but as in our other cases, that error affects only “the accuracy of [the] determination” to acquit, not “its essential character.” Scott, 437 U. S., at 98 (internal quotation marks omitted).
B
The court below saw things differently. It identified a “constitutionally meaningful difference” between this case and our previous decisions. Those cases, the court found, “involve[d] evidentiary errors regarding the proof needed to establish a factual element of the... crimes at issue,” but still ultimately involved “a resolution regarding the sufficiency of the factual elements of the charged offense.” 491 Mich., at 14-15, 810 N. W. 2d, at 542-543. When a court mistakenly “identified] an extraneous element and dismissed] the case solely on that basis,” however, it has “not resolve[d] or even address[ed] any factual element necessary to establish” the offense. Id., at 15, 20, 810 N. W. 2d, at 543, 546. As a result, the court below reasoned, the case terminates “based on an error of law unrelated to [the] defendant’s guilt or innocence on the elements of the charged offense,” and thus falls outside the definition of an acquittal. Id., at 21, 810 N. W. 2d, at 546.
We fail to perceive the difference. This case, like our previous ones, involves an antecedent legal error that led to an acquittal because the State failed to prove some fact it was not actually required to prove. Consider Rumsey. There the trial court, sitting as sentencer in a capital case involving a murder committed during a robbery, mistakenly held that Arizona’s statutory aggravating factor describing killings for pecuniary gain was limited to murders for hire. Accordingly, it found the State had failed to prove the killing was for pecuniary gain and sentenced the defendant to life imprisonment. After the State successfully appealed and obtained a death sentence on remand, we held that retrial on the penalty phase question was a double jeopardy violation.
The only relevant difference between that situation and this one is that in Rumsey the trial court’s error was called a “misinterpretation” and a “misconstruction of the statute,” 467 U. S., at 207, 211, whereas here the error has been designated the “erroneous addition of [an] extraneous element to the charged offense,” 491 Mich., at 3-4, 810 N. W. 2d, at 536. But we have emphasized that labels do not control our analysis in this context; rather, the substance of a court’s decision does. See Smalis, 476 U. S., at 144, n. 5; Scott, 437 U. S., at 96-97; Martin Linen, 430 U. S., at 571. The error in Rumsey could just as easily have been characterized as the erroneous addition of an element of the statutory aggravating circumstance: that the homicide be a murder-for-hire. Conversely, the error here could be viewed as a misinterpretation of the statute’s phrase “building or other real property” to exclude dwellings. This is far too fine a distinction to be meaningful, and we reject the notion that a defendant’s constitutional rights would turn on the happenstance of how an appellate court chooses to describe a trial court’s error.
Echoing the Michigan Supreme Court, the State and the United States, as well as the dissent, emphasize Martin Linen’s description of an acquittal as the “resolution, correct or not, of some or all of the factual elements of the offense charged.” 430 U. S., at 571 (emphasis added); see Brief for Respondent 11-17; see Brief for United States as Amicus Curiae 11-15 (hereinafter U. S. Brief); see post, at 336-338. They observe that the Double Jeopardy Clause protects against being twice placed in jeopardy for the same “of-fence,” U. S. Const., Arndt. 5, cl. 2, and they note that an offense comprises constituent parts called elements, which are facts that must be proved to sustain a conviction. See, e. g., United States v. Dixon, 509 U. S. 688, 696-697 (1993). Consequently, they argue, only if an actual element of the offense is resolved can it be said that there has been an acquittal of the offense, because “ ‘innocence of the charged offense’ cannot turn on something that is concededly not an element of the offense.” U. S. Brief 15. Because Evans’ trial ended without resolution of even one actual element, they conclude, there was no acquittal.
This argument reads Martin Linen too narrowly, and it is inconsistent with our decisions since then. Our focus in Martin Linen was on the significance of a judicial acquittal under Federal Rule of Civil Procedure 29. The District Court in that case had “evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.” 430 U. S., at 572. That determination of non-culpability was enough to make the acquittal akin to a jury verdict; our holding did not depend upon defining the “elements” of the offense. As we have explained, supra, at 319-320, Scott confirms that the relevant distinction is between judicial determinations that go to “the criminal defendant’s lack of criminal culpability,” and those that hold “that a defendant, although criminally culpable, may not be punished because of a supposed” procedural error. 437 U. S., at 98. Culpability (i. e., the “ultimate question of guilt or innocence”) is the touchstone, not whether any particular elements were resolved or whether the determination of non-culpability was legally correct. Ibid., n. 11 (internal quotation marks omitted).
Perhaps most inconsistent with the State’s and United States’ argument is Burks. There we held that when a defendant raises insanity as a defense, and a court decides the “Government ha[s] failed to come forward with sufficient proof of [the defendant’s] capacity to be responsible for criminal acts,” the defendant has been acquitted because the court decided that “criminal culpability ha[s] not been established.” 437 U. S., at 10. Lack of insanity was not an “element” of Burks’ offense, bank robbery by use of a dangerous weapon. See 18 U. S. C. § 2113(d) (1976 ed.). Rather, insanity was an affirmative defense to criminal liability. Our conclusion thus depended upon equating a judicial acquittal with an order finding insufficient evidence of culpability, not insufficient evidence of any particular element of the offense.
In the end, this case follows those that have come before it. The trial court’s judgment of acquittal resolved the question of Evans’ guilt or innocence as a matter of the sufficiency of the evidence, not on unrelated procedural grounds. That judgment, “however erroneous” it was, precludes re-prosecution on this charge, and so should have barred the State’s appeal as well. Sanabria, 437 U. S., at 69.
H-Í f—1 1—1
A
The State, supported by the United States, offers three other reasons why the distinction drawn by the court below should be maintained. None persuades us.
To start, the State argues that unless an actual element of the offense is resolved by the trial court, the only way to know whether the court’s ruling was an “acquittal” is to rely upon the label used by the court, which would wrongly allow the form of the trial court’s action to control. Brief for Respondent 17-18, 21-22. We disagree. Our decision turns not on the form of the trial court’s action, but rather whether it “serve[s]” substantive “purposes” or procedural ones. Scott, 437 U. S., at 98, n. 11. If a trial court were to announce, midtrial, “The defendant shall be acquitted because he was prejudiced by preindictment delay,” the Double Jeopardy Clause would pose no barrier to reprosecution, notwithstanding the “acquittal” label. Cf. Scott, 437 U. S. 82. Here we know the trial court acquitted Evans, not because it incanted the word “acquit” (which it did not), but because it acted on its view that the prosecution had failed to prove its case.
Next, the State and the United States fear that if the grounds for an acquittal are untethered from the actual elements of the offense, a trial court could issue an unreviewable order finding insufficient evidence to convict for any reason at all, such as that the prosecution failed to prove “that the structure burned [was] blue.” Brief for Respondent 16-17; U. S. Brief 15. If the concern is that there is no limit to the magnitude of the error that could yield an acquittal, the response is that we have long held as much. See supra, at 318. If the concern is instead that our holding will make it easier for courts to insulate from review acquittals that are granted as a form of nullification, see Brief for Respondent 30, n. 58, we reject the premise. We presume here, as in other contexts, that courts exercise their duties in good faith. Cf. Harrington v. Richter, 562 U. S. 86, 103 (2011).
Finally, the State suggests that because Evans induced the trial court’s error, he should not be heard to complain when that error is corrected and the State wishes to retry him. Brief for Respondent 32-33; cf. id., at 5-9. But we have recognized that “most [judgments of acquittal] result from defense motions,” so “[t]o hold that a defendant waives his double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal would undercut the adversary assumption on which our system of criminal justice rests, and would vitiate one of the fundamental rights established by the Fifth Amendment.” Sanabria, 437 U. S., at 78 (citation omitted). It is true that when a defendant persuades the court to declare a mistrial, jeopardy continues and retrial is generally allowed. See United States v. Dinitz, 424 U. S. 600 (1976). But in such circumstances the defendant consents to a disposition that contemplates reprosecution, whereas when a defendant moves for acquittal he does not. See Sanabria, 437 U. S., at 75.
The United States makes a related argument. It contends that Evans could have asked the court to resolve whether nondwelling status is an element of the offense before jeopardy attached, so having elected to wait until trial was underway to raise the point, he cannot now claim a double jeopardy violation. U. S. Brief 22-25. The Government relies upon Lee v. United States, 432 U. S. 23 (1977), in which the District Court dismissed an indictment midtrial because it had failed to allege the required intent element of the offense. We held that retrial on a corrected indictment was not barred, because the dismissal was akin to a mistrial, not an acquittal. This was clear because the District Court had separately denied the defendant’s motion for judgment of acquittal, explaining that the defendant “‘has been proven [guilty] beyond any reasonable doubt in the world/” while acknowledging that the error in the indictment required dismissal. Id., at 26-27. Because the defendant “invited the court to interrupt the proceedings before formalizing a finding on the merits” by raising the indictment issue so late, we held the principles governing a defendant’s consent to mistrial should apply. Id., at 28 (citing Dinitz, 424 U. S. 600).
The Government suggests the situation here is “functionally similar,” because “identifying the elements of an offense is a necessary step in determining the sufficiency of a charging document.” U. S. Brief 23. But we cannot ignore the fact that what the trial court actually did here was rule on the sufficiency of the State’s proof, not the sufficiency of the information filed against him. Lee demonstrates that the two need not rise or fall together. And even if the Government is correct that Evans could have challenged the charging document on the same legal theory he used to challenge the sufficiency of the evidence, it matters that he made only the latter motion, a motion that necessarily may not be made until trial is underway. Evans cannot be penalized for requesting from the court a ruling on the merits of the State’s case, as the Michigan Rules entitled him to do; whether he could have also brought a distinct procedural objection earlier on is beside the point.
B
In the alternative, the State and the United States ask us to reconsider our past decisions. Brief for Respondent 34-56 (suggesting overruling our cases since at least Fong Foo); U. S. Brief 27-32 (suggesting overruling Smith, Rumsey, and Smalis). We declined to revisit our cases when the United States made a similar request in Smalis. 476 U. S., at 144; see Brief for United States as Amicus Curiae in Smalis v. Pennsylvania, O. T. 1985, No. 85-227, pp. 19-25. And we decline to do so here.
First, we have no reason to believe the existing rules have become so “unworkable” as to justify overruling precedent. Payne v. Tennessee, 501 U. S. 808, 827 (1991). The distinction drawn in Scott has stood the test of time, and we expect courts will continue to have little “difficulty in distinguishing between those rulings which relate to the ultimate question of guilt or innocence and those which serve other purposes.” 437 U. S., at 98, n. 11 (internal quotation marks omitted). See, e. g., United States v. Dionisio, 503 F. 3d 78, 83-88 (CA2 2007) (collecting cases); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 25.3(a), p. 629 (3d ed. 2007) (same).
Second, the logic of these cases still holds. There is no
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211. Court of Private Land Claims
Answer:
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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.
UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE AT 1012 GERMANTOWN ROAD, PALM BEACH COUNTY, FLORIDA also known as “D’s” Grocery, Defendant-Appellant, Roberto Chang, Claimant-Appellant.
No. 89-5590.
United States Court of Appeals, Eleventh Circuit.
June 26, 1992.
James L. Eisenberg, West Palm Beach, Fla., Joel Kaplan, Miami, Fla., for defendant-appellant.
Dexter Lehtinen, U.S. Atty., Lynn M. Summers, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Before KRAVITCH, Circuit Judge, HILL and SMITH, Senior Circuit Judges.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
KRAVITCH, Circuit Judge:
In a special verdict rendered in the United States District Court for the Southern District of Florida, a jury determined that the property of claimant Roberto Chang was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Chang appeals this verdict challenging a) the district court’s decision to allow the jury to overhear hearsay evidence and b) a special interrogatory equating consent with a property owner’s failure to take all reasonable efforts to prevent illicit use of his property. Because the district court committed reversible error when it allowed the jury to overhear inadmissible hearsay evidence, we remand for a new trial at which the judge should thoroughly instruct the jury on the legal definition of consent.
I. THE FACTS
The defendant real estate is a parcel of land situated at the intersection of 10th Street and Germantown Road, Delray Beach, Palm Beach County, Florida (1012 Germantown Road). Located on this real estate is a convenience store where such items as fresh coffee, soda, beer, bread and canned foods are sold. The store is referred to as “D’s Grocery,” and is owned, along with the accompanying real estate, by Roberto Chang (“claimant”), the proprietor of the store. Claimant purchased the property in 1979 or 1980 following a period during which he leased the store from the prior owner.
In January, 1987, a task force was formed to address the drug trafficking problems plaguing the greater German-town Road area. The force consisted of agents from the Federal Bureau of Investigation and other federal agencies, as well as officers from the local police and sheriffs offices. The local law enforcement agencies had proposed the creation of such a task force after realizing that their increased commitment of resources had led to even less success in controlling the drug traffic.
The initial focus of the task force was the source of supply of narcotics in the targeted areas, including the 10th Street/Germantown Road neighborhood. Because street arrests had proven ineffective, the strategy of the task force was to incapacitate the source of the drug supply. The local agencies, prior to the formation of the task force, had developed an intelligence base that indicated that an individual named Deniz Fernandez and an associate were the source of the narcotics in the area.
The FBI agent assigned to head the task force used this information to identify specific locations in the 10th Street/German-town Road area associated with the sale of cocaine and other drugs. Two of these properties were identified as “The Hole” and D’s Grocery. The Hole was owned by Deniz Fernandez, Abraham Oliva, and Roberto Rodriguez, and D’s Grocery was owned by claimant.
As a result of the task force investigation, Deniz Fernandez, Abraham Oliva, Roberto Rodriguez, and others were indicted. Civil forfeiture actions commenced on numerous properties in the 10th Street/Ger-mantown area, including D’s Grocery. The indictment was received into evidence.
The government presented numerous witnesses who testified to buying and selling drugs at the 1012 Germantown location. Many of these witnesses discussed the relationship between The Hole and the parking lot of D’s Grocery. According to these witnesses, the sale would commence on the grounds of the grocery, but the supplies were stored at The Hole. Often the dealers would run from the parking lot to The Hole to obtain more drugs for sale. The government offered no witnesses who admitted selling or buying drugs inside of D’s Grocery or who ever saw drugs within the Grocery.
Claimant Chang was aware of the drug activity occurring on and around his property. He testified, however, that he never saw drugs or drug transactions occurring within his store. Chang also introduced corroborating testimony from fourteen witnesses who were either residents of the area or otherwise familiar with the Ger-mantown location.
Chang and several of his witnesses testified that he tried constantly to halt the drug traffic. On numerous occasions he or one of his employees would call the police. Often, he would personally leave the store to chase away the dealers. He placed large yellow signs in both front windows of the store which said “No Loitering.” He installed cameras and mirrors inside his store to detect illegal activity. He removed the telephones on the north side of his building because he suspected they were being used to facilitate drug sales. He paved over the dirt parking lot to prevent drug dealers from burying their drugs in the dirt. He erected tall fences, installed a burglar alarm and kept watchdogs. He asked several of his friends and some drug dealers to assist him in moving the drug traffic off his property.
The government claims that Chang made insufficient efforts to prevent drug dealings on his property. They question the number of calls he made to police, arguing that claimant should have obtained phone logs to prove his calls. In addition, they claim that Chang only chased away the drug dealers when the police were able to observe him doing so. Finally, the government suggested, during closing arguments, that Chang should have released his dogs to drive away the loiterers.
Through the task force investigation, the police compiled information linking Roberto Chang with the convicted drug supplier, Deniz Fernandez. A search of Fernandez’ home uncovered an album containing a photograph of Deniz Fernandez, Abraham Oliva and claimant Roberto Chang in an obviously social setting. In addition, Fernandez’ business (a plant nursery) had originally been located in a shed on claimant’s property that Fernandez had leased from Chang. In the past, Chang had lent money to Fernandez to start his nursery business, and Fernandez had paid him back completely. Chang acknowledged that Fernandez was his friend due to their connections in Cuba but denied that he knew of Fernandez’ involvement in drug dealing.
II. COURSE OF PROCEEDINGS
On June 1, 1988, the government filed a claim against D’s Grocery, alleging that the property was subject to forfeiture under 21 U.S.C. § 881(a)(7) as real property used to commit, or facilitate, the commission of a violation of Title 21. Claimant requested a jury trial.
Following argument of counsel on the order of proof and the admissibility of hearsay evidence during the government’s initial probable cause case, the district court issued a ruling concerning the appropriate procedure to be utilized during the trial. The district court ruled that: (1) the issue of probable cause was a question for the court; (2) the government’s probable cause evidence would be heard in the “presence of the jury because, otherwise, the case [would not] make any sense at all to let the defendant go forward with proof, and disprove something not at issue”; (3) the government would present its probable cause evidence first, then the court would make a legal determination of probable cause;’ and (4) if probable cause was established, then claimant would have the burden of proving his defense, and the government would be permitted to offer rebuttal evidence.
Trial commenced pursuant to this procedure. The government presented its evidence before the jury, and the district court ruled that the government had met its probable cause burden. Chang then presented his case, and the government had the opportunity to rebut. After completion of the closing arguments, the judge instructed the jury concerning the issues on which a verdict was necessary. The judge specifically modified Requested Jury Instruction No. 18 to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate” in order to prevent a section 881(a)(7) forfeiture. The jury was instructed to make its determination in the form of a special verdict, consisting of four interrogatories. The claimant made no objection to the jury instructions but objected to the last special interrogatory.
The jury returned a verdict in favor of the United States. The special interrogatory verdict form stated the jury’s findings that claimant had not proven: (1) that the property had not been used to commit drug violations; (2) that claimant did not know of the illegal use of the property; (3) that claimant did not consent to the illegal use of the property; and (4) that claimant did not do everything that he could reasonably be expected to do to prevent the illegal use of the property. The district court subsequently entered a final judgment of forfeiture in accordance with the jury verdict. Claimant now appeals.
III. THE CLAIMS
Claimant raises four issues on appeal. First he argues that the district court erred when it chose to hear the government’s probable cause hearsay evidence in the presence of the jury. Second, he claims that the district court erred by submitting the fourth special interrogatory to the jury in which the jury was asked whether claimant had proven that he had taken all reasonable actions to prevent his property from being used in violation of the drug laws. The other two issues raised by claimant are without merit, and in any case, need not be addressed given our decision to remand for a new trial on the basis of Chang’s first claim.
IV. STANDARD OF REVIEW
The propriety of procedures involved in a 21 U.S.C. § 881 case where an innocent owner defense is presented is a question of law and is consequently reviewed de novo. United States v. One Single Family Residence, 894 F.2d 1511 (11th Cir.1990). The content of a special interrogatory is reviewed for abuse of discretion. Stewart & Stevenson Services, Inc. v. Pickard, 749 F.2d 635, 641 (11th Cir.1984).
V. THE STATUTE
21 U.S.C. § 881 provides for forfeiture of property used to facilitate illicit acts. Section 881(a)(7) deals specifically with the forfeiture of real property. Such property shall be subject to forfeiture if it:
is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
This circuit has noted that “[t]he language of section 881(a)(7) reflects two interrelated aims of Congress: to punish criminals while ensuring that innocent persons are not penalized for their unwitting association with wrongdoers.” United States v. 15621 S.W. 209th Avenue, 894 F.2d 1511, 1513 (11th Cir.1990) (finding no forfeiture of property owned in the entire-ties by an innocent spouse). The latter purpose, the protection of innocent owners, is guaranteed by the statutory language exempting owners who have no knowledge of or do not consent to the illegal activity affecting their property.
This protection of innocent owners goes beyond the language of section 881. In evaluating forfeiture actions, courts must not only consider the statutory limitations, but the constitutional guarantees of core individual rights. See United States v. $38,000 in United States Currency, 816 F.2d 1538, 1548-49 (11th Cir.1987). This court has explicitly cautioned against the overzealous prosecution of drug related crimes at the expense of constitutional rights:
We are not unsympathetic to the government’s strong desire to eradicate drug trafficking: we recognize that illegal drugs pose a tremendous threat to the integrity of our system of government. We must not forget, however, that at the core of this system lies the Constitution, with its guarantees of individuals’ rights. We cannot permit these rights to become fatalities of the government’s war on drugs.
Id. at 1548-49. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-690, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974). Accordingly, courts must cautiously balance the government’s strong desire to eradicate illicit drug trafficking against constitutional guarantees of individual rights.
VI.PROCEDURE
The structure of a section 881 forfeiture proceeding is well settled by statute and case law. First, a claimant must establish standing as an owner of the contested property. United States v. Certain Real Property, 724 F.Supp. 908, 913 (S.D.Fla.1989). In this case, claimant’s ownership is uncontested.
Once a claimant has established standing, the burden shifts to the government to prove probable cause for the institution of the forfeiture action. 19 U.S.C. § 1615; United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983). The trial court bears the responsibility for determining whether the government has proven probable cause. 19 U.S.C. § 1615. The government must convince the judge that it had a “reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion.” United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986). In presenting its case, the government is permitted to present otherwise inadmissible hearsay evidence. Id. at 629 n. 2.
Once probable cause is established, the burden shifts to the claimant to prove by a preponderance of the evidence a defense to the forfeiture. United States v. 15603 8th Avenue North, Lake Park, 933 F.2d 976, 979 (11th Cir.1991). It is a “statutory requirement” that the claimant, and not the government, bear the burden of proving an innocent owner defense. 19 U.S.C. § 1615; United States v. Four Million Two Hundred Fifty-five Thousand Dollars, 162 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). The question of whether a claimant has sufficiently established an innocent owner defense is a question of fact to be determined by the fact finder. United States v. 5000 Palmetto Drive, 928 F.2d 373 (11th Cir.1991); United States v. Hayes, 943 F.2d 1292 (11th Cir.1991).
VII. BIFURCATION
Because the government is permitted to use hearsay evidence to prove its probable cause case to the court, A Single Family Residence, 803 F.2d at 629, n. 2, an issue arises concerning the propriety of allowing the jury to overhear this evidence. Usually, this situation is easily resolved because forfeiture cases are typically tried as bench trials, making it relatively easy for the judge as factfinder to sort out the hearsay evidence from the admissible evidence before making a factual determination.
In the instant case, a potential for prejudice arose because Chang exercised his right to a jury trial. In an attempt to avoid such prejudice, claimant Chang asked the district court to bifurcate the trial into a) a bench trial to determine probable cause and b) a subsequent jury trial on the issue of the innocent owner defense. The trial judge refused the request, reasoning that it would not “make any sense at all to let the defendant go forward with proof, and disprove something not at issue.” By allowing the government to present hearsay evidence before the jury, the court committed reversible error.
A. Case Law
Two other district courts and one other circuit court have dealt with similar requests to bifurcate a section 881 forfeiture trial in order to shield the jury from prejudicial hearsay. In each of these cases, the courts found that a trial must be bifurcated in order to avoid reversible error.
In United States v. $150,000 In Currency, 686 F.Supp. 133 (E.D.Va.1988), the “claimants ask[ed] the court to conduct the probable cause hearing outside the presence of the jury to avoid infecting the jury with inadmissible hearsay relating to probable cause.” Id. at 134. The government in $150,000 In Currency contested claimant’s bifurcation request. Finding no case law and no principle in favor of allowing hearsay into the jury’s consideration of the government’s forfeiture claim, the court honored the claimant’s request: “there is no reason to distinguish a civil forfeiture proceeding from any other civil proceeding. Absent an exception under Rules 803 or 804, Fed.R.Evid., hearsay is not admissible for the truth of the matters asserted. Fed.R.Evid. 801(c), 802.” Id. at 134. Similarly, a different district court held that “[p]roperly admitted hearsay evidence on the issue of whether there was probable cause to find that the property was used to further trafficking of illegal narcotics is inadmissible in a forfeiture case on the issue of whether an owner falls within the innocent owner exception.” United States v. Property Identified as 908 T Street, N. W., 770 F.Supp. 697, 702-03 (D.D.C.1991).
The Third Circuit has held that even in a bench trial, the improper use of hearsay evidence during the innocent owner portion of the trial is grounds for remand. “It is well settled law that evidence which is relevant and admissible as to one issue, here probable cause, can be inadmissible as to another.” United States v. 6109 Grubb Road, 886 F.2d 618, 622 (3rd Cir.1989). In Grubb, the district court relied on hearsay as well as other evidence to find that claimant had failed to sufficiently establish that he was an innocent owner. Because the use of hearsay depositions to rebut claimant’s innocent owner defense was an “improper use of hearsay evidence” that had been admitted for the purpose of establishing probable cause, the Third Circuit was compelled to remand. Id. at 623.
B. Curative Instruction Not Sufficient
The government contends that the judge’s curative instruction was sufficient to erase any prejudice created by the admission of hearsay evidence. The judge had instructed the jury, on claimant’s request that:
Obviously, if he’s telling you what he personally observed and saw, of course you can consider that. But when he’s telling you about his sources, that’s only offered for the purpose of giving background, and you’re not to consider that as evidence against the defendant, because it’s hearsay.
That is, he can’t say of his own personal knowledge what somebody told him. We’re receiving that totally for the — so you can put it in some context.
(Emphasis added).
This instruction fails to erase the prejudice for several reasons. First, a curative instruction is not tantamount to deletion of prejudice. “[Tjhere are some contexts in which 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, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). In this case, it would be unreasonable to expect a jury to not only ignore the hearsay evidence, but to remember which bits of information they acquired from hearsay evidence rather than from admissible evidence. The error from exposure to this much hearsay evidence cannot be fixed by curative instructions. See $150,000 In Currency, 686 F.Supp. at 134.
Second, the hearsay evidence was not an accidental slip on the part of counsel or a witness. All parties and the judge knew well in advance that the testimony would contain a great deal of hearsay. Failure to reverse on this issue, will lend credibility to the argument that judges need not avoid prejudicing the jury — even when avoidance does not impose hardship on any party or the court — because an instruction can undo the harm. The district court in $150,000 In Currency recognized this rationale when it noted that:
a curative instruction [would not] be sufficient to dispel any prejudice to claimants flowing from the admission of hearsay. To conclude otherwise would be to create a new rule that hearsay is admissible if accompanied by a curative instruction. No such rule exists. Accordingly, the issue of probable cause for forfeiture will be heard by the Court prior to the jury trial on the issue of whether claimants are innocent owners of the seized property.
$150,000 In Currency, 686 F.Supp. at 134 (emphasis added).
Third, the judge’s instruction was inadequate. He did not tell the jury that it could not use hearsay for the truth of the matter asserted. It merely told them to use the hearsay as background evidence. This instruction tells the jury to use the information, but to weigh it less heavily than other information. Such an instruction is insufficient to cure the prejudice incurred, especially when the prejudice could have been easily and appropriately avoided by bifurcation.
Finally, the judge never itemized the hearsay for the jury. In effect he told them, after hearing numerous witnesses and affidavits, to remember what each witness said and then to remember whether the witness said he saw something or whether the witness was recounting what he had heard from other sources. From reading the record it is obvious that this is an impossible task for any jury. There were many witnesses talking about numerous other individuals. It is unreasonable to expect the jury, without guidance, to remember which of its impressions were created by direct evidence and which were created by hearsay.
Clearly, the best way to have prevented prejudice was bifurcation and the judge’s instructions did not mitigate the damage caused by the court’s failure to bifurcate the trial.
C. Remedy
Admission of hearsay evidence can constitute reversible error. In Bruton, a new trial was necessary because inadmissible hearsay was presented to the jury, and the curative instruction was not sufficient to outweigh prejudice. 391 U.S. at 126, 88 S.Ct. at 1622. Similarly, this circuit has reversed district courts for improperly admitting certain hearsay statements. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1562 (11th Cir.1991).
The hearsay evidence presented in this case was sufficiently prejudicial to merit remand. This circuit’s predecessor has held that admission of hearsay requires a new trial if the jury may have relied upon it in reaching its verdict, Elizarraras v. Bank of El Paso, 631 F.2d 366, 375 (5th Cir.1980). In this case, the hearsay evidence admitted to show probable cause contained references to Chang’s supposed financial backing of Fernandez, a known and convicted drug lord. It also contained references to a large number of reports detailing incidents of drug dealing near the 1012 address. The jury may well have relied on this improperly admitted evidence in returning a verdict in favor of the government.
In addition, remand is warranted if a jury is invited to consider the truth of the hearsay. Gulbranson v. Duluth, Missabe and Iron Range Railway Company, 921 F.2d 139 (8th Cir.1990). As mentioned previously, the Chang jury was specifically invited to consider the hearsay evidence, albeit as mere “background” and “contextual” evidence.
In sum, the district court erred in refusing to bifurcate the trial. Given this failure to bifurcate, the inadequacy of the cautionary instruction, and the extent and importance of the hearsay statements, we are compelled to remand for a new trial in which the jury will not overhear the government’s probable cause hearsay evidence.
VIII. INNOCENT OWNER DEFENSE
In Chang’s second claim, he challenges the implied definition of consent contained in the fourth special interrogatory presented to the jury. Because this court has not specifically defined consent for the purposes of establishing an innocent owner defense under section 881(a)(7), we now resolve this issue so that it can be properly addressed on remand.
Section 881(a)(7) explicitly permits a defense to forfeiture for those owners who can prove that they had no knowledge of illegal activity occurring on their property or who did not consent to that activity. Therefore, an owner can avoid forfeiture by proving either ignorance or non-consent.
At trial, Chang admitted that he was aware of the drug activity occurring on and around his property, but asserted an innocent owner defense based on his lack of consent to this activity. After closing arguments, the jury was presented with the following four special interrogatories concerning the innocent owner defense:
I. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that the subject property was not used to commit or to facilitate the commission of violation of the drug laws?
II. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he had no knowledge that the subject property was being used to commit, or to facilitate the commission of violation of the drug laws?
III. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did not consent to the subject property being used to commit, or to facilitate the commission of violation of the drug laws?
IV. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws?
(Emphasis added). The jury answered “no” to all four questions. Consequently, the court ruled that claimant had failed to avoid forfeiture as an innocent owner.
Chang argues that the district court erred by presenting the fourth interrogatory to the jury because this interrogatory implies that a claimant can only avoid a section 881 forfeiture by proving that he made “all reasonable efforts” to prevent the illicit use of his property. Chang challenges the application of this standard, claiming that he is not required to make an “all reasonable efforts” showing in order to avoid an 881 forfeiture as an innocent owner. We disagree with Chang’s interpretation of the standard. However, we agree with Chang that the district court failed to adequately instruct the jury as to the definition of consent.
A. Calero-Toledo Standard
The “all reasonable efforts” language is derived from Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686, 689-90, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974), in which property had been seized pursuant to a Puerto Rican forfeiture statute. In that case, the Supreme Court noted, in dictum, that it might be “difficult” to reject the constitutional claim of an owner whose property has been subject to forfeiture, when that owner has proven not only that he was uninvolved in and unaware of wrongful activity, but who has proven that he has done all that reasonably could be expected to prevent the proscribed use of his property. Id.
Although the Calero-Toledo dicta is not binding, it nevertheless indicates a definition of consent which this court may choose to apply to the 881(a)(7) innocent owner defense. Recently, this court chose to adopt the Calero-Toledo standard for purposes of defining the innocent owner exception contained in section 881(a)(6): “a claimant who has actual knowledge of the commingling of legitimate and drug funds may be spared forfeiture as an innocent owner if the claimant can prove that everything reasonably possible was done” to disentangle the property from the illegal activity. United States v. 15603 85th Avenue North, 933 F.2d 976, 982 (11th Cir.1991) (emphasis added). See also 141st Street Corporation, 911 F.2d 870, 879 (2nd Cir.1990) (Given the extent of the current drug problem, “defining ‘consent’ in section 881(a)(7) as the failure to take all reasonable steps to prevent illicit use of premises once one acquires knowledge of that use is entirely appropriate.”).
15603 85th Avenue North dealt exclusively with a section 881(a)(6) forfeiture and did not directly address the issue of the appropriate standard to apply in a section 881(a)(7) situation. However, section 881(a)(6) parallels section 881(a)(7), providing for forfeiture of “moneys” and other valuable properties and containing an identically worded innocent ownership exception. Indeed, when the innocent owner defense of 881(a)(7) is discussed in the legislative history, the 881(a)(6) defense is mentioned by way of comparison. It is, therefore, appropriate to apply the section 881(a)(6) definition of consent to a section 881(a)(7) proceeding.
Thus, the district court did not err by presenting the jury with a special interrogatory asking the jury whether Chang had done “everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws.” That question accurately reflects the law of this circuit: proof of non-consent for the purposes of 881(a)(7) requires a claimant to show that he took all reasonable steps to prevent the illegal use of his property.
B. Jury Instructions Re: Consent
At the time of Chang’s trial, the Eleventh Circuit had not yet adopted the Calero-Toledo standard as it pertains to the innocent owner exceptions of 881(a)(6) and 881(a)(7). Therefore, when claimant questioned the legal propriety of the fourth interrogatory, the district judge himself was unsure what standard applied to 881(a)(7).
Presumably because of this ambivalence over the appropriate standard, the trial judge failed to instruct the jury on the definition of consent. He did not allude to a “reasonable efforts” standard anywhere in his jury instructions. In fact, the judge modified a requested jury instruction to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate.” In the end, the judge merely stated that the burden is on the claimant to prove that the “real property was used to facilitate the illegal trafficking of narcotics without the knowledge or consent of Roberto Chang.” He then defined “facilitate” and ‘.‘knowledge” but did not further discuss “consent.” The only time “reasonable efforts” was mentioned was in the fourth interrogatory.
The ultimate determination of consent and the “reasonableness” of a claimant’s actions are questions of fact to be answered by the factfinder, in this case, the jury. United States v. 418 57th Street, 922 F.2d 129, 132 (2nd Cir.1990). However, the trial judge bears the exclusive burden of properly instructing the jury as to any relevant legal principles necessary to the proper determination of the case. Jones v. Miles, 656 F.2d 103, 107 n. 6 (5th Cir. Unit B, 1981). In the instant case, the trial judge failed to fulfill this duty, leaving the jury inadequately instructed concerning the definition of consent and the “all reasonable efforts” requirement.
The district court should have defined consent for the jury as a failure to take all reasonable steps to prevent the illicit use of one’s property. Further, that court should have made clear that the Calero standard does not require that the claimant make all efforts, he need merely make all reasonable efforts. Although an innocent, knowledgeable owner must affirmatively demonstrate his lack of consent, “reasonableness limits the burden.” United States v. Forfeiture, Stop Six Center, 781 F.Supp. 1200, 1209 n. 6 (N.D.Texas 1991). Indeed, an owner cannot “reasonably” be expected to succeed at preventing illegal use of his property when the police have been incapable of doing the same. Courts “do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control.” Id. See also United States v. 171-02 Liberty Avenue, 710 F.Supp. 46, 51 (E.D.N.Y.1989); U.S. v. Sixty Acres in Etowah County, 930 F.2d 857, 861, n. 2 (11th Cir.1991).
The reasonable efforts criteria can be satisfied by contacting and cooperating with law enforcement authorities, especially when a claimant is unable to halt the drug traffic on his own. “Although we do not require claimants to work alongside these agents in their effort to combat drug dealers, we insist that claimants under no immediate threat of reprisal either communicate their knowledge to police, or attempt to remove themselves from the scene of illegal activity.” Etowah, 930 F.2d at 861.
On remand, the district court should properly instruct the jury on the definition of consent and the reasonable efforts necessary to avoid a section 881(a)(7) forfeiture.
IX. CONCLUSION
For the foregoing reasons, we REMAND the forfeiture action for a new trial in accordance with this opinion.
. The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. Reference to these reports prejudiced Claimant because the jury was not made aware that most of the incidents detailed in these reports occurred near, but not at, D’s Grocery and that none occurred inside the store.
.There is case law in other circuits that incorrectly reads Section 881(a)(7) to require an owner to prove both non-consent and ignorance in order to succeed in an innocent owner defense. The plain words of the statute, however, as well as case law, mandate that either ignorance or non-consent is sufficient to make out an innocent owner defense. Reiter v
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:
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songer_r_fiduc
|
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 "fiduciaries". 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.
AMANULLAH AND WAHIDULLAH, Petitioners, Appellees, v. Charles T. COBB, etc., Respondent, Appellant.
No. 87-1695.
United States Court of Appeals, First Circuit.
Heard Feb. 1, 1988.
Decided Nov. 22, 1988.
Joseph F. Ciolino, Office of Immigration Litigation, Civ. Div., Dept, of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Civ. Div., and Richard M. Evans, Asst. Director, Washington, D.C., were on brief, for respondent, appellant.
Arthur C. Helton, Lawyers Committee for Human Rights, New York City, with whom Regina Lee, Legal Services Center, was on brief, for petitioners, appellees.
Before COFFIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and PETTINE, Senior District Judge.
Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge.
The issue presented on appeal is whether and to what extent the Attorney General has discretion to deport excludable aliens under 8 U.S.C. § 1227(a). The district court held that advance written assurance of acceptance of the petitioners in this case by the government of India was required by § 1227(a)(2). The panel majority follows a different route, giving the government the option of voluntarily obtaining advanced assurances and, failing exercise of such option, vacates the judgment and remands the case for the reinstitution of an appeal under 8 U.S.C. § 1253(h).
Facts
Appellees are Afghan refugees. In 1983, appellees fled from Afghanistan to New Delhi, India, after they were imprisoned by the Afghan authorities for participating in anti-government demonstrations. Joint Appendix, 139.
In the fall of 1985, appellees were assisted by a “travel agent” with arrangements for them to travel to Canada, where they hoped to be granted political asylum. On November 22,1985, they departed from the airport in Bombay, India. When the plane from Bombay made a stopover in New York en route to Toronto, appellees were detained by the Immigration and Naturalization Service [hereinafter INS] because of the lack of valid travel documents. Appel-lees were detained initially at the Service Processing Center in New York City and, apparently because of space limitations, they were then transferred to the INS detention facility in Boston. Id. at 139-40.
On December 20, 1985, appellees filed applications before an immigration judge in joint exclusion proceedings for political asylum in the United States under 8 U.S.C. § 1158 and for withholding of deportation to Afghanistan under 8 U.S.C. § 1253(h). Id. at 140. On September 22, 1986, the immigration judge rendered an oral decision denying appellees’ applications for political asylum and withholding of deportation, despite advisory opinions from the Bureau of Human Rights and Humanitarian Affairs of the Department of State, rendered pursuant to 8 C.F.R. § 208.10 (1986), which stated that appellees could have a well-founded fear of persecution upon return to Afghanistan. Id. at 4-5.
On September 22, 1986, appellees appealed the immigration judge’s denial of asylum and withholding to the Board of Immigration Appeals. Id. at 140. In a prior habeas proceeding on unrelated grounds brought by appellees, appellant represented to this court that the government will not return appellees to Afghanistan. Appellant reaffirmed this position in a March 9, 1987 letter to appellees’ counsel. Id. at 140, 149. In reliance upon appellant’s representation that they would not be returned to Afghanistan, and hoping to gain release, appellees withdrew their appeals to the Board of Immigration Appeals on March 30, 1987, thus rendering administratively final the immigration judge’s order of exclusion and immediate deportation under 8 U.S.C. § 1227. Id. at 140.
On April 30, 1987, appellant informed appellees’ counsel that a request for “travel facilities” for appellees had been made by the INS to the State Department on April 17, 1987, pursuant to a 1983 INS guideline providing for release on immigration parole in cases where there exist difficulties in enforcing departure to third countries for aliens who are under final orders of exclusion. Id. at 60. However, appel-lees’ counsel was informed that appellees would be deported to India.
Shortly thereafter, in May 1987, appellant- was warned by the United Nations High Commissioner for Refugees [hereinafter UNHCR] that the Indian government would not allow the appellees’ return. Id. at 64, 140, 151. According to the UNHCR, Afghan refugees who are returned without advance assurance of the Indian government’s willingness to accept them are at risk of refoulement to Afghanistan. Id. at 140, 151. In a prior letter to appellees’ counsel dated November 26,1985, the Commissioner had written:
[It] is unclear ... whether U.S. authorities are required to ascertain in advance the Indian government’s willingness to reaccept a particular refugee before he is, in fact, returned. In the light of what has occurred in the past, UNHCR New Delhi believes this to be essential if the risk of refoulement is to be avoided.
Id. at 152-53.
On May 5, 1987, appellees requested appellant to stay their deportation until such time as the INS could obtain advance assurances that the government of India would consent to their admission, and that appellees would not be returned by India to Afghanistan. Id. at 64, 141. Appellees’ request for a stay of deportation was denied on May 11, 1987 by appellant, id. at 141, who at that time planned to return appellees on May 12, 1987 by sending them unescorted on an air carrier to India.- Id. at 66. Appellant had not obtained advance assurance of the Indian government’s willingness to accept appellees.
On May 11, 1987, appellees filed a petition for writ of habeas corpus and a motion for a temporary restraining order. On the same day, the District Court enjoined appellant from deporting appellees to India until appellant obtained prior assurance that India will accept appellees and will not return them to Afghanistan.
Appellees received a letter from UNHCR dated May 13, 1987, informing them that UNHCR had received a second cable from its office in India which reiterated its concern about the possibility of refoulement to Afghanistan. The letter further stated that its office in India had “cited previous cases and noted that UNHCR’s involvement in the case was unlikely to influence how the case is handled.” Id. at 92.
On May 20,1987, appellant filed a motion to dismiss the petition for writ of habeas corpus and request for injunctive relief, and a supporting memorandum of law. A.93-132. The District Court heard appel-lees’ and appellant’s arguments at a hearing on May 21, 1987 and issued its decision on May 28, 1987. Id. at 138-155. The District Court held that advance assurance of acceptance is required under 8 U.S.C. § 1227(a), and it ordered the INS to make the appropriate inquiry of the Indian government prior to making any arrangements for appellees’ deportation to that country, 673 F.Supp. 28. Id. at 148. It is from this decision that the present appeal is taken.
We note one further fact not available to the District Court. In a letter dated May 18, 1987, appellant informed Mr. M. Iyer, a Counselor at the Embassy of India in Washington, D.C., of its intention to deport “Wahid Ullah” [sic] and “Aman Ullah” [sic] to India and requested that Mr. Iyer relay this information to his home office in India. Id. at 203. When appellant received no response to this letter from the Indian Embassy, appellant sent another letter to Mr. Iyer, dated July 10, 1987, making reference to the May 18, 1987 letter and again requesting that he relay its portents to his government. In a letter, dated July 23, 1987, to Assistant INS Commissioner Joan C. Higgins, which, having been received after the District Court’s decision, is not a part of the formal record, N. Kubendran, Second Secretary in the Indian Embassy, Washington, D.C., stated that “[s]ince the above two AFGHAN nationals [Amanullah and Wahidullah] left India on their own volition, Government of India will not be in a position to accept them. We would also like to clarify that Government of India do [sic] not accept the theory of the so called ‘country of first refuge obligation.’ ” Ap-pellees’ Brief, Addendum, A-8.
Excludability Under § 1227(a)
Neither Amanullah nor Wahidullah contests their status as excludable aliens under 8 U.S.C. § 1182(a)(26). The Attorney General, having both properly determined their status pursuant to 8 U.S.C. § 1226 and detained them under 8 U.S.C. § 1225, now seeks to deport them. Section 1227 of Title 8 governs the deportation of excluda-ble aliens.
Section 1227(a) regulates the determination of the location to which the excludable alien may be deported. This subdivision has two parts. Section 1227(a)(1) instructs the Attorney General in relevant part that “[d]eportation shall be to the country in which the alien boarded the vessel or aircraft on which he arrived in the United States....” 8 U.S.C. § 1227(a)(1). Section 1227(a)(2) gives the Attorney General additional flexibility in determining where the alien may be sent “[i]f the government of the country designated in paragraph (1) will not accept the alien into its territo-ry_” 8 U.S.C. § 1227(a)(2). In particular, this provision permits the alien to be sent to “(A) the country of which the alien is a subject, citizen, or national; (B) the country in which he was born; (C) the country in which he has a residence; or (D) a country which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible.” 8 U.S.C. § 1227(a)(2).
The Application of § 1227(a)
Under § 1227(a)(1), Amanullah and Wahi-dullah should be deported to India, the country from which they embarked for the United States, unless the Attorney General decides in his discretion that deportation to that country is impracticable or improper. Nonetheless, Section 1227(a)(2) expressly states that “[i]f the government designated in paragraph (1) will not accept the alien” then he must be sent to a country that belongs to one of four other enumerated classes. 8 U.S.C. § 1227(a)(2).
In effect, section 1227(a)(2) limits the permissible deportation of aliens to a country that is willing to accept them. Accordingly, the question arises whether under this provision the Attorney General must receive written verification of a country’s willingness to accept the excludable alien. The lower court answered this question affirmatively; I agree.
Under a parallel provision for the deportation of deportable aliens, 8 U.S.C. § 1253(a), by virtue of which the alien is permitted to designate the country to which he is deported provided that the country designated is “willing to accept him,” Congress required that there be prior inquiry to and assurance from that country that it was indeed willing to accept this alien. Moreover, when Congress adopted the present provision of section 1227, it manifested its intent to establish a common procedure for both excludable and deporta-ble aliens. See S.Rep. No. 859, 96th Cong., 2d Sess. 14 (1980) (amendment “provides that aliens who are excluded from entry into the United States but who cannot be returned to the country ‘whence they came,’ may be sent to other countries as is the case with aliens who have entered the United States and are later deported”); H.R.Rep. No. 264, 97th Cong., 1st Sess. 24 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 2577, 2593 (amendment “provides the Attorney General with the same flexibility with respect to removal of aliens who are not permitted to enter the United States as it does, under Section 243(a) of the Act [8 U.S.C. § 1253(a) ], in the case of aliens who have entered the United States and are subsequently deported”).
Given that Congress intended to establish a common procedure for both excluda-ble and deportable aliens, Congress’ requirement of willing acceptance by the country designated in § 1227(a)(1) becomes highly significant. Congress most likely intended that the same procedure for determining whether a country was willing to accept a deportable alien would be used for determining whether a country was willing to accept an excludable alien. Section 1227(a)(2) must require prior inquiry to and assurance from a country that it is willing to accept the excludable alien before that alien may be deported to that country.
Congress could not have intended to permit the United States government to engage in the practice of placing refugees in orbit: in flight from country to country, none willing to accept them. As Judge Learned Hand observed in United States ex. rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir.1959), “it would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance, when it was possible to ascertain the truth in advance by inquiry.” Murff, 264 F.2d at 928.
Since the lower court’s opinion, the Indian government has directly addressed the case of Amanullah and Wahidullah. In a letter concerning petitioners to the Department of Justice, the Indian government stated expressly that it did not accept the theory of the so-called “country of first refuge obligation” and that the Indian government will not readmit petitioners if the United States attempts to send them back. See Brief for Appellees, A-8. Because the Indian government has not given the requisite assurance, but instead has expressly written that it will not accept petitioners, Amanullah and Wahidullah must be sent to another country that meets one of the conditions stated in §§ 1227(a)(2)(A), (B), (C) or (D). Accordingly, under § 1227(a)(2), petitioners cannot be deported to India unless the Indian government reverses its official position and states in writing both that it will accept petitioners and that petitioners will not be refouled to Afghanistan.
Regarding § 1227(a)(2)(A), (B), (C) and (D), the application of § 1227(a) is restricted by 8 U.S.C. § 1253(h). Omitting an in-apposite parenthesis, § 1253(h)(1) states that “[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h)(1). While this provision is limited by § 1253(h)(2), none of the four conditions set forth therein are applicable to the present case.
Section 1253(h), “provide[s] for withholding deportation of aliens to countries where they would face persecution, unless their deportation would be permitted under the U.N. Convention and Protocol Relating to the Status of Refugees ... [or] unless any of four specific conditions [previously set forth] were met.” H.R.Conf.Rep. No. 781, 96th Cong., 2d Sess. 20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 141, 160, 161. Moreover, as the Senate Report accompanying the Refugee Act of 1980 makes clear, this restriction imposed by § 1253(h) is meant to apply to “the deportation of aliens who seek asylum in exclusion, as well as deportation, proceedings.” S.Rep. No. 256, 96th Cong., 2d Sess. 17 (1979), reprinted in 1980 U.S.Code Cong. & Admin.News 141, 157.
As the Supreme Court notes in I.N.S. v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), “the text of the statute simply does not specify how great a possibility of persecution must exist to qualify the alien for withholding of deportation.” Stevic, 467 U.S. at 421-22, 104 S.Ct. at 2496-97. Nonetheless, the Court continues, “[t]o the extent such a standard can be inferred from the bare language of the provision, it appears that a likelihood of persecution is required.” Id. at 422, 104 S.Ct. at 2496. Thus, as held by the Supreme Court, “[t]he question under that standard is whether it is more likely than not that the alien would be subject to persecution.” Id. at 424, 104 S.Ct. at 2498.
Because § 1253(h) obviously applies to prevent the Attorney General from deporting petitioners to Afghanistan, neither can the petitioners be deported under 8 U.S.C. § 1227(a)(2)(A), (B) or (C). Thus, only § 1227(a)(2)(D) is available to authorize the deportation of the petitioners. Section 1227(a)(2)(D), however, also contains Congress’ requirement of willing acceptance. Accordingly, for the reasons already stated with respect to the first occurrence of the willing acceptance requirement, I believe that § 1227(a)(2)(D) also requires prior inquiry to and written assurance from a country that it is willing to accept the ex-cludable alien before that alien may be deported to that country. Needless to say, such assurance has not been received from India in the present case and, therefore, appellees should not be deported to that country.
The Application of § 1253(h)
Although the above discussion of § 1227(a) represents only the writer’s view, the majority of this panel holds that, on the record in this case, the government’s assurance that it would not deport appellees to Afghanistan effectively prevents their deportation to India pending reinstatement and final disposition of their appeal from an adverse ruling of the immigration judge. As previously observed, the discretion of the Attorney General under § 1227(a)(2) is limited by § 1253(h). Section 1253(h) together with the standard of proof articulated in Stevie require that the Attorney General decide that deportation to a country is improper if the alien can show that there exists a likelihood that “such alien’s life or freedom would be threatened in such a country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h). Accordingly, since appellees withdrew their appeal from the immigration judge’s § 1253(h) decision only on the government’s representation that they would not be returned to Afghanistan, they should be permitted to reinstate their appeal unless the government can obtain advance assurance that the appellees will be accepted and not sent to Afghanistan. In such a posture, it is quite possible if not likely that § 1253(h) would prevent deportation.
The refoulement of a political refugee to a country from which he has escaped and to which he does not desire to return because of the danger it poses, is beyond doubt an interference with his life and liberty. We note, first, that if the Indian government sent petitioners back to Afghanistan that this would constitute an interference with petitioners’ life and liberty at the very least on account of their nationality and that, therefore, the threat of such interference is a threat within the meaning of § 1253(h).
Given that § 1253(h) applies to petitioners’ deportation, we consider the evidence adduced by petitioners that the Indian government threatens an interference with their life and liberty and determine if this evidence meets the standard of proof necessary to invoke § 1253(h). The petitioners have cited, inter alia, three communications from the United Nations High Commissioner for Refugees. The UNHCR is an expert on the status of refugees throughout the world. It has an office in India and has paid special attention to the position of Afghanistan nationals in India. In the opinion of the UNHCR, the petitioners would be at risk. To avoid refoulement to Afghanistan the UNHCR recommended that petitioners receive assurances in advance that they would not be returned to Afghanistan. The UNHCR referred to two cases of Afghanistan nationals that were returned by the Indian government to Afghanistan. Moreover, the UNHCR has been following the cases of Amanullah and Wahidullah and has been told specifically that in their cases “refoulement to Afghanistan is not excluded.” Joint Appendix, Exh. E-3. Nor does the Bureau of Human Rights and Humanitarian Affairs of the Department of State think that this is an exaggeration. In an advisory opinion, issued pursuant to 8 C.F.R. § 208.10 (1986), the Bureau stated that petitioners could have a well-founded fear of persecution upon return to Afghanistan. See Joint Appendix, 5. Together with this evidence may be added the official communication of the Indian government stating that it would not accept the appellees and that it does not recognize the country of first refuge obligation. We believe that on these facts the Stevie standard would be met.
Conclusion
Under the unique circumstances we conclude that, with the cooperation of the United States, we can bring about an equitable result by retaining jurisdiction subject to the following conditions. If, within sixty days the United States obtains written assurances from the Indian government that it will accept petitioners and that they will not be subject to refoulement to Afghanistan, the judgment below will be set aside so that appellees may be sent to India. If, on the other hand, such written assurances have not been received within sixty days, the deportation of petitioners will be stayed pending reinstatement and final decision of their § 1253(h) appeal from the immigration judge. If such decision is favorable, the judgment below shall be vacated as moot. If such decision is adverse, the judgment below shall be vacated and deportation may then ensue. If, thirty days after receipt of notice by petitioners that they may reinstate their § 1253(h) appeal, no such action is requested, the judgment below shall be vacated and deportation may then ensue.
No costs.
. The following statement of the facts draws heavily on appellees’ statement thereof which we find consistent with our own independent reading of the record.
. The factual background of appellees’ flight is described in Amanullah v. Nelson, 811 F.2d 1 (1st Cir.1987).
.At a hearing in the District Court on May 21, 1987, counsel for appellant indicated that appellant does not contest the authenticity of the High Commissioner’s letters. Id. at 140, 151-53.
. This section represents the views of the writer. Judge Aldrich has filed a separate concurrence and Judge Coffin has also refrained from joining this analysis of § 1227(a), resting his concurrence on the grounds of § 1253(h), discussed at pp. 367-368 infra.
. Counsel for the Government argues that the official expression by the Indian government of its sovereign will does not reflect India’s de facto practice and, therefore, that it does not prove that the appellees would not be accepted by that country. We find it incredible that the officials of our own government could be so contemptuous toward the officials of another. The continuing peace and future prosperity of the global community of nations demand and require that the official pronouncements of another sovereign nation be accorded the full faith and respect appropriate to sovereignty. Within a court of law official pronouncements by a government must be treated as dispositive of sovereign intent.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, ex rel., Frank Earl SENK, S-0026, Appellant, v. J. R. BRIERLEY, Superintendent, Appellee.
No. 71-1924.
United States Court of Appeals, Third Circuit.
Submitted Nov. 13, 1972.
Decided Jan. 9, 1973.
Frank Earl Senk, pro. se.
James F. McCort, Asst. Atty. Gen., Philadelphia, Pa., for appellee.
Before ALDISERT, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
This is an appeal from the denial of a petition for a writ of habeas corpus. The district court certified probable cause for appeal. Petitioner Senk is confined in a Pennsylvania prison on a judgment of sentence following his conviction, in 1962, for first degree murder. His conviction was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963). That judgment was vacated by the United States Supreme Court and the case was remanded for a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), on the admissibility of Senk’s extrajudicial statements. Senk v. Pennsylvania, 378 U.S. 562, 84 S.Ct. 1928, 12 L.Ed.2d 1039 (1964) (per curiam). The Pennsylvania Supreme Court then remanded to the trial court with directions to hold a hearing to determine whether Senk’s extrajudicial statements, admitted at his trial, were voluntary. The trial court found that the statements were voluntary and so reported to the Supreme Court of Pennsylvania, which affirmed. Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966), cert. denied, 387 U.S. 914, 87 S.Ct. 1694, 18 L.Ed.2d 638 (1967).
In 1967 Senk filed a petition in the district court for a writ of habeas corpus. He contended:
(1) that he had been deprived of his right to counsel;
(2) that a confession used at his trial had been obtained in violation of his privilege against self-incrimination ;
(3) that there was introduced in evidence testimony concerning his refusal to submit to a polygraph examination ;
(4) that the trial court should have granted a mistrial when on two separate occasions police officers testified about his criminal record;
(5) that he was arrested without a warrant and without probable cause and was detained for 67 hours before being taken before a Magistrate.
In the district court, Judge Follmer, on the basis of the state court record, without any federal evidentiary hearing, denied the petition for a writ of habeas corpus. United States ex rel. Senk v. Russell, 274 F.Supp. 783 (M.D.Pa.1967). Senk appealed. This court on appeal noted (1) that in making its findings on the admissibility of Senk’s extrajudicial statements in the Jackson v. Denno hearing the Pennsylvania trial court did not have the benefit of the Supreme Court’s subsequent decisions in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) and Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), and (2) that the district court in rejecting the petition did not have the benefit of this court’s subsequent decision in United States ex rel. Singer v. Myers, 384 F.2d 279 (3d Cir. 1967), rev’d per curiam, 392 U.S. 647, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968). The latter case held that a Pennsylvania prisoner, before seeking federal habeas corpus relief, ordinarily must exhaust remedies still available under the Pennsylvania Post Conviction Hearing Act. Pa.Stat.Ann. tit. 19, §§ 1180-1 to 1180-14 (Supp. 1972). We said:
“In view of the prolonged period of custody and questioning of the appellant and the failure to advise him fully as to the extent of his privilege against self-incrimination as discussed in the foregoing cases, we will affirm the order of the District Court solely for the reason that the appellant has not exhausted his available remedies, as required by 28 U.S.C. § 2254, and without prejudice to his right to apply for relief under 19 P.S. §§ 1180-1 to 1180-14, as stated above.” United States ex rel. Senk v. Russell, 396 F.2d 445, 447 (3d Cir. 1968) (per curiam).
The opinion of this court makes it quite clear that all matters which the appellant wished to raise in the petition for habeas corpus in the federal courts must be raised in a Pennsylvania Post Conviction Hearing Act proceeding, as required by 28 U.S.C. § 2254. See 396 F.2d at 447 n. 2.
Senk returned to the Pennsylvania courts. On July 15, 1968 he filed a petition alleging essentially the same five contentions listed above. The Columbia County Court conducted a hearing and denied relief. An appeal was taken to the Pennsylvania Supreme Court and a hearing was held in that court during the week of May 26, 1969. As of the date on which this appeal was submitted to us no decision had been rendered by the Supreme Court of Pennsylvania.
Senk returned to the district court. He filed a new habeas corpus petition alleging the same five contentions set forth above, and in addition a sixth contention, that there had been an inordinate delay by the Pennsylvania Supreme Court in deciding the appeal on his Post Conviction Hearing Act petition. Judge Nealon in the district court held, with respect to grounds one through five, that these had been determined adversely to Senk by Judge Follmer in the first federal habeas corpus proceeding, and that under 28 U.S.C. § 2244(a) Senk should not be permitted to relitigate these issues. He reasoned that Judge Follmer’s opinion, though based solely on the state court records, “was on the merits,” and that the same factual and legal contentions should not be reconsidered. With respect to the sixth ground, Judge Neal-on concluded that the desire of the Pennsylvania Supreme Court to await the decision of the United States Supreme Court on the constitutionality of the death sentence was an adequate justification for delaying the decision of Senk’s appeal in his Post Conviction Hearing Act proceeding from May of 1969 to March of 1972. He ruled:
“Accordingly, the petition of Frank Earl Senk for a writ of habeas corpus will be dismissed because (1) allegations 1-5 have been raised and disposed of on the merits in a prior habeas corpus petition before this court and (2) Senk has failed to exhaust his available state remedies as to allegation (6).” (footnote omitted).
We reverse as to all six allegations.
There is a “Catch 22” flavor to the disposition by the district court of allegations one through five now before us. When Judge Follmer decided these contentions adversely to Senk based on the state coui’t record he appealed to us. We held that the district court should not have passed upon those contentions. Technically, we affirmed the denial of the writ on a ground at least analogous to a lack of jurisdiction. Technically, perhaps, we should in such circumstances have remanded to the district court with an order to vacate its improper judgment, and to dismiss on exhaustion grounds. Because we did not, the district court on the second petition treated the first distinct court decision as an adjudication on the merits, even though we held it should not have been made, though our decision that exhaustion of state remedies was required deprived Senk of the opportunity for appellate review of the merits, and though the state proceedings, exhaustion of which we contemplated, have never been completed.
If strict principles of res adjudicata were applicable to habeas corpus proceedings our failure to remand the first case to the district court for vacation of the judgment when we affirmed on a ground analogous to lack of jurisdiction arguably would leave the district court opinion standing as a final decision “on the merits.” See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Federal Savings & Loan Insurance Corp. v. Hykel, 468 F.2d 1386 (3d Cir. 1972). Compare the above with Restatement of Judgments § 69(2), comment d at 317 (1942). But res adjudicata is inapplicable to habeas corpus cases. E. g., Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989 (1924). Technical rules which serve as traps for the typically unrepresented pro se litigant have no place in habeas corpus jurisprudence.
In Neil v. Biggers, supra, the Supreme Court considered the effect, in a habeas corpus case, of the affirmance of a conviction on certiorari by an equally divided Supreme Court. The problem arose because of the provisions in 28 U.S.C. § 2244(c) that a prior judgment of the Supreme Court “shall be conclusive as to all issues of fact or law . . . in a habeas corpus proceeding. . . . ” The Court declined to construe § 2244 (c)'s bar as extending to claims on which the judgment of a state court stands because of the affirmance by an equally divided Court. This is clearly an a fortiori case. In the first appeal we did not express a divided opinion on the issues considered by Judge Follmer; we expressed no opinion. Moreover, unlike the mandatory language adopted by Congress in 1966 when it enacted § 2244(c), the language of § 2244(a) says only that a federal judge shall not “be required to entertain an application for a writ of habeas corpus” if a prior federal court has passed on the same ground. Certainly § 2244(a) is no flat bar to reconsideration of the five grounds considered by Judge Follmer. In a habeas corpus case seeking relief from state confinement where, as in the first appeal to this court, a certificate of probable cause issued, 28 U.S.C. § 2253, common sense dictates that when considering a subsequent petition a district judge look not to the judgment appealed from but to the judgment of this court to determine, for purposes of 28 U.S.C. § 2244(a), what grounds were presented and determined.
Thus we hold that Judge Follmer’s prior adjudication of Senk’s grounds one through five was not an adequate ground for the denial of the writ in the second habeas corpus proceeding. And since in our prior decision we held that Judge Follmer should not have acted, we now hold that the district court is free to consider all five grounds without regard to his action on the first petition.
There remains for consideration Senk’s sixth ground for relief, the delay from May, 1969 to date in deciding the appeal from the denial of his Pennsylvania Post Conviction Hearing Act petition. The district court justified this delay on the ground that the Pennsylvania court was awaiting the Supreme Court’s death penalty ruling. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam). That reason has expired by the passage of time. The exhaustion rule of 28 U.S.C. § 2254(b) assumes the existence of an available state court remedy, including an available appeal. E. g., Way v. Crouse, 421 F.2d 145 (10th Cir. 1970). The present reason for delay in final disposition of Senk’s Post Conviction Hearing Act appeal does not appear. Having waited for the decision for three and a half years Senk should not now be subjected to the dismissal of his petition. United States ex rel. Johnson v. Cavell, 468 F.2d 304 (3d Cir. 1972).
The order of the district court will be reversed and the case remanded to the district court:
(1) for a hearing to determine the present status of Senk’s appeal from the Pennsylvania Post Conviction Hearing Act decision;
(2) if that appeal has been finally determined, for a decision, including an evidentiary hearing if under 28 U.S. C. § 2254(d) such a hearing shall be deemed appropriate in the light of the entire state court" record including the record of the Pennsylvania Post Conviction Hearing Act proceeding, on grounds one through five of Senk’s habeas corpus petition;
(3) if that appeal has not been finally determined, for a decision, including an evidentiary hearing if under 28 U.S.C. § 2254(d) such a hearing shall be deemed appropriate, in the light of the state court record without regard to the record in the Pennsylvania Post Conviction Hearing Act Proceeding, on grounds one through five of Senk’s habeas corpus petition.
. It is hard to imagine how the death penalty would be relevant to the illegality of his confinement alleged in grounds one through five.
. In Way v. Crouse, id. at 146-147, Judge Murrah wrote:
“Just as a delay in the adjudication of a post-conviction appeal may work a denial of due process, so may a like delay in the determination of a direct appeal. The question presented here is in what court should petitioner seek vindication of his asserted constitutional grievance. In our view, Way properly resorted to the federal court, which should not, without knowing the facts and circumstances of the eighteen-month delay, have required him at this late date to commence a completely new and independent proceeding through the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains.”
. See Singer v. Myers, 392 U.S. 647, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968), rev’g per curiam 384 F.2d 279 (3d Cir. 1967).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_respond1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Kenneth WEAVER, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.
No. 88-1450.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 21, 1989.
Decided Nov. 2, 1989.
Frank D. Eaman (argued), Bellanca, Beattie and De Lisle, Detroit, Mich., for petitioner-appellant.
Carolyn Schmidt, Asst. Atty. Gen. (argued), Detroit, Mich., for respondent-appel-lee.
Before MERRITT, Chief Judge, KRUPANSKY, Circuit Judge, and GRAHAM, District Judge.
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation.
MERRITT, Chief Judge.
In this case, the District Court dismissed Weaver’s habeas corpus petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as a “mixed” petition containing exhausted and unex-hausted issues. It did so without regard to the subsequent case of Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), which allows consideration of exhausted issues in mixed habeas corpus petitions. In our view, Weaver’s insufficient evidence claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), may well be dispositive of the case; and, as stated by the District Court, that federal claim was exhausted because it was fairly presented to the Michigan courts. Accordingly, we exercise our discretion under Granberry and vacate the District Court’s order denying relief. Further, we remand for consideration of the insufficient evidence claim and any other federal claims fairly presented to the Michigan courts.
FACTS
The state charged four men — Weaver, his twin brother, Hopson, and Thompson with the murder of Hagwood. The evidence against Hopson and Weaver appears to be identical: both were among a group of four men arguing with Hagwood when Thompson pulled a gun from his car and fatally shot Hagwood. The only eyewitness to the shooting, Elaine Faye Peterson, testified at the separate trials of Weaver and Hopson. In her account of the night of the shooting, Hagwood had argued in a barroom with Hopson and the Weaver twins over ownership of a radio. All four men left the bar and continued to argue outside, where Hopson and the Weavers threatened that Hagwood “would never see daylight.” It was then that Thompson shot Hagwood. After the shooting, two other witnesses saw Hopson and one of the Weaver twins walk to Hopson’s home and exchange with the residents some item or items which may have been the shell casings from Thompson’s gun.
PROCEDURAL HISTORY
A jury convicted Weaver of aiding and abetting first-degree murder and possession of a firearm in the commission of a felony; he was sentenced to life without parole and two years, respectively. After the Michigan trial court denied Weaver’s motion for a new trial, the Michigan Court of Appeals upheld his aiding and abetting conviction, vacated his felony firearm conviction, and denied his motion for reconsideration. Weaver subsequently unsuccessfully sought review by the Michigan Supreme Court.
Weaver then petitioned for a writ of ha-beas corpus in the District Court. He alleged that the following events violated his federal constitutional rights: 1) the evidence was insufficient; 2) the judge failed to give a cautionary instruction regarding the testimony of an addict-informant; 3) the prosecution withheld exculpatory evidence; 4) the judge erroneously admitted testimony that a codefendant had taken a polygraph test; 5) Weaver was denied effective assistance of counsel due to joint representation of Weaver and his twin brother; and 6) the judge denied a new trial based on newly discovered evidence.
In its answer to Weaver’s petition, the state conceded that Weaver had exhausted his federal claims in the Michigan courts, but persuaded the District Court that issues two, four, and six had not been raised as federal questions in state court. Relying on the “mixed petition” principle set forth in Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) (plurality opinion), the District Court dismissed the petition because it contained both exhausted and unexhausted claims. In his motion for reconsideration, Weaver insisted that he had exhausted his federal claims in state court, and emphasized that a codefendant (Hopson) who had been tried separately on identical evidence had received a writ of habeas corpus from this Court on the ground of insufficient evidence. After the District Court denied his motion, Weaver appealed to this Court.
ISSUE I: INSUFFICIENT EVIDENCE
Our account of the facts and evidence against Hopson in Hopson v. Foltz, [818 F.2d 866 (Table)] (6th Cir.1987), and the facts and evidence as presented in the Michigan Court of Appeals in Weaver’s case appear to be identical. Interpreting the decisions of Michigan courts and of this Circuit, we held that Hopson’s “passive acquiescence” without “some conscious action to make the criminal venture succeed” fell short of the threshold conduct required of an aider and abettor of first-degree murder. Hopson, slip op. at 3.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that an individual’s state court conviction on insufficient evidence violates the due process clause of the Fourteenth Amendment. That seminal case established the pertinent standard of review.
[W]hether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Id. at 319, 99 S.Ct. at 2789. A writ of habeas corpus must issue to any habeas petitioner whose conviction falls short of this standard. Id. at 317-18, 99 S.Ct. at 2788.
Reviewing the facts of Hopson under the Jackson standard, this Court was unable to conclude that a rational juror could find beyond a reasonable doubt that Hopson aided and abetted the shooting. Hopson, slip op. at 3. At most, Hopson was present at the shooting, he may have argued with Hagwood shortly before the shooting, he may have known that someone intended to harm Hagwood, and he may have taken the empty shell casings after the shooting. Id. There was no evidence that Hopson acted in pre-concert with Thompson or that he in any way supported, encouraged, or incited commission of the crime. Id. at 4. Hopson’s actions, perhaps sufficient to make him an accessory after the fact, did not rise to the level of an aider and abettor in the killing. Id. As a result, this Court issued Hopson’s writ of habeas corpus. Id.
The state presented no evidence at trial or any subsequent stage to distinguish the evidence against these codefendants. Accordingly, we instruct the District Court on remand to consider Weaver’s insufficient evidence claim in light of Hopson v. Foltz.
ISSUE II: FAIR PRESENTATION OF FEDERAL CLAIMS IN STATE COURT
Notwithstanding the insufficient evidence claim, Weaver asks this Court to direct the District Court to reach the merits of the remaining five claims made in his original petition. Should the District Court determine that the writ should not issue on the basis of the insufficient evidence claim, we instruct it to consider the merits of those claims which have been fairly presented to the Michigan courts.
The guiding principles for the District Court’s inquiry come from two Supreme Court cases. See, e.g., Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (substance of respondent’s claim was not fairly presented to state courts so as to meet exhaustion requirement); Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (constitutional claim itself and not just underlying facts must be presented to state courts). The Supreme Court’s requirement of fair presentation has been strictly followed in this Circuit. See, e.g., Franklin v. Rose, 811 F.2d 322, 325 (6th Cir.1987) (catch-all allegations such as constitutional right to a fair trial supported only by state law do not fairly apprise state court of specific constitutional theory); Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir.1984) (“fair trial” and “due process” do not call to mind a specific right protected by the Constitution).
In its order denying Weaver’s petition for habeas relief, the District Court concluded that three of Weaver’s six federal claims satisfied the Supreme Court’s requirement of fair presentation to the state courts. Should the District Court decide against Weaver’s insufficient evidence claim on remand, then it should reach the merits of the two remaining exhausted federal claims. Weaver may not present in a habeas petition his three remaining federal claims that the Michigan courts did not have fair opportunity to address.
ISSUE III: EXHAUSTION OF STATE COURT REMEDIES
A. Mixed Petitions
The District Court grounded its dismissal of Weaver’s petition on the strict exhaustion dictate of Rose v. Lundy, in which the Supreme Court held that habeas courts must dismiss petitions containing both exhausted and unexhausted claims. A prisoner filing a “mixed petition” could choose to return to state court and exhaust his nonexhausted claims, or to drop them and proceed in federal court with only the exhausted claims. Rose v. Lundy, however, has not survived Granberry v. Greer intact. After Granberry, a federal appellate court may, in “extraordinary cases” requiring “prompt federal intervention,” reverse the district court's dismissal and reach the merits of the mixed petition. Alternatively, it may reverse the dismissal and remand for consideration by the district court as we elect to do here. The factual and evidentiary overlap between Hopson v. Foltz and this case is “extraordinary.”
B. Waiver
The final issue on appeal concerns Weaver's allegation that the state waived the right to raise the exhaustion issue in this Court by conceding in its answer to his petition that Weaver had exhausted his federal claims in state court. Although the District Court confronted the waiver issue, it did so without the perspective offered by the Supreme Court’s decision in Granberry v. Greer. Before Granberry, this Circuit interpreted the strict exhaustion dictate of Rose v. Lundy to prohibit states from waiving the exhaustion requirement. See Bowen v. Tennessee, 698 F.2d 241, 243 (6th Cir.1983) (en banc). But like Rose v. Lundy, Bowen has not survived Granberry intact. See, e.g., Cobb v. Perini, 832 F.2d 342, 345 (6th Cir.1987) (“Granberry casts considerable doubt on our prior decisions requiring total exhaustion.”). Granberry has circumscribed the exhaustion requirement by allowing federal courts to use their sound discretion in deciding the waiver issue and to make exceptions in the application of the mixed petition doctrine of Rose v. Lundy.
Accordingly, we exercise our discretion in this case under Granberry. The judgment of the District Court is reversed and the case remanded for consideration first of the Jackson v. Virginia claim, and if necessary, any other claims which Weaver has exhausted in the state courts of Michigan.
. One month after the Court decided Granberry, this Court expressly approved bypassing the exhaustion requirement in a case in which the state conceded the exhaustion issue. See Prather v. Rees, 822 F.2d 1418, 1421-22 (6th Cir.1987).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. 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.
SAFE DEPOSIT BANK AND TRUST COMPANY, Petitioner, Appellant, v. Eugene B. BERMAN, Trustee, Appellee. In the Matter of FERNANDES WELDING & EQUIPMENT SERVICE, INC., Bankrupt.
No. 7041.
United States Court of Appeals First Circuit.
April 22, 1968.
George B. Scully, Holyoke, Mass., with whom Lyon, Curley, Scully & Fitzpatrick, Holyoke, Mass., was on brief, for appellant.
Earl Alpert, Springfield, Mass., for ap-pellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
Appellant Safe Deposit Bank and Trust Company (Bank) appeals from an order of the district court affirming an adverse finding of a referee in bankruptcy. The referee had ruled that the Bank had not succeeded in establishing a lien on certain property (or the sales proceeds thereof) of a bankrupt.
The Bank had financed the bankrupt during the period relevant to this case, using a variety of security arrangements. On June 26, 1963 it had executed a blanket “Loan and Security Agreement”. This Agreement provided that the Bank would loan up to 70 per cent of the “borrowing base”, and would be secured for its advances by the borrower’s “contract rights, accounts receivable and other collateral and in the proceeds and products thereof.” The Agreement encompassed liabilities of the borrower to the Bank “due or to become due, now existing or hereafter arising”.
On July 30, 1963 the debtor borrowed $25,000 on a demand note from the Bank, which contained the following printed recitation:
“ * * * having deposited with said bank, as collateral for payment of this and any and all other liabilities, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, * * * the following property, viz:”
This was followed by the typewritten notation:
“Security Interest in Accounts Receivable,
Contract Rights, etc. under agreement dated 6/26/53; also in Equipment, etc. under Security Agreements dated 5/6/63 and 7/30/63.”
The security agreement of July 30, 1963 was executed on a printed form containing the following condition: “ * * * to secure payment of the Total Debt as evidenced hereby and by the note or notes of even date herewith and also any and all liabilities of Debtor to Secured Party under this agreement or said note or notes or any renewals or ■ extensions thereof * * *.” The appropriate financing statements required by the Uniform Commercial Code were duly recorded.
Subsequent borrowings were accomplished through notes bearing the same notations as to security as the note of July 30, 1963. While this note was marked as paid on September 18, 1963, the balance owed the Bank by the debtor was never below $25,000 and, as of September 18, was $109,876.50.
The debtor being declared a bankrupt, the Bank sought to enforce a lien against the property covered by the July 30 security agreement. The trustee claimed that, the note having been paid, the mortgage expired. The Bank claims that the security agreement secured notes subsequent to that of July 30 or, alternatively, that the subsequent notes were themselves security agreements.
The problem is created by a security agreement which is confined by its terms to the specific note it secures — or any renewals or extensions thereof — and the contemporaneous and subsequent notes which recite that the agreement had been deposited as collateral for all present and future liabilities.
We reluctantly affirm — reluctantly because the result is commanded not by fireside equities but by the necessary technicalities inherent in any law governing commercial transactions. We start with the proposition that the Uniform Commercial Code, Mass.Gen.Laws Ann. ch. 106, § 9-201 (1958), provides that “Except as otherwise provided by this chapter a security agreement is effective according to its terms * * *. ” We next come to section 9-204(5) which states that “Obligations covered by a security agreement may include future advances * * *. ” Official Comment 8 under this section contains the following language: “Under subsection (5) collateral may secure future as well as present advances when the security agreement so provides. * * * In line with the policy of this Article toward after-acquired property interests this subsection validates the future advance interest, provided only that the obligation be covered by the security agreement.” See also In re Rivet, 4 CCH Instal. Credit Guide |f 97858 (E.D.Mich., Oct. 2, 1967) (Referee’s opinion); P. Coogan, W. Hogan, D. Vagts, 1 Secured Transactions Under the Uniform Commercial Code § 8.07(4) (1967); 0. Spivak, Secured Transactions 25, 31 (1963).
The definition of security agreement in section 9-105 (h) is “an agreement which creates or provides for a security interest”. The security agreement of July 30,1963 was such an agreement. A note, even reciting data relating to collateral security, is not thereby converted into such an agreement. Harding v. Eldridge, 186 Mass. 39, 71 N.E. 115 (1904). Moreover, although appellant urges that the note and security agreement be read together, section 3-119 of the Uniform Commercial Code states only that “the terms of an instrument [i. e., a negotiable instrument, § 3-102] may be modified or affected by any other written agreement executed as a part of the same transaction * *. ” It does not say that the terms of the negotiable instrument can affect a separate written agreement.
We acknowledge that Comment 3 under section 3-119 explains that “The section applies to negotiable instruments the ordinary rule that writings executed as a part of the same transaction are to be read together as a single agreement.” But even were we to say that the terms of a note could modify the terms of a separate, if contemporaneous, security agreement, we face the fact that the supposedly curative language in the note regarding future liabilities is not phrased as an undertaking but as a statement of something done in the past which was not, in fact, done. The note merely recites “ * * * having deposited * * * as collateral for payment of * * * liabilities * * * now existing or hereafter arising * * The security agreement itself is silent as to its collateral status relative to future obligations other than renewals or extensions of the specific note.
It is arguable that the debtor’s failure to demand, pursuant to section 9-404(1) and (2), a termination statement indicating that appellee had no security interest is evidence of its alleged understanding that the July 30, 1963 security agreement was indeed intended to cover future advances. This, together with the notations on the various notes, raises the question of the extent to which the intention of the parties and equitable considerations may affect rights ineffectively preserved in legal instruments.
Massachusetts law has shown itself sensitive to such considerations, for example, in refusing to treat as discharged a real estate mortgage of record, when the intention of the parties was to continue a prior security for a new note, Piea Realty Co. v. Papuzynski, 342 Mass. 240, 172 N.E.2d 841 (1961), and in reinstating a first mortgage on real estate which had been discharged by mistake, North Easton Co-operative Bank v. MacLean, 300 Mass. 285, 15 N.E.2d 241 (1938). But in this case we deal with the Uniform Commercial Code and must look to its terms and spirit for guidance.
Section 1-103 at first analysis would seem to give comfort to appellant in recognizing that “principles of law and equity” should supplement the provisions of the Code “[u]nless displaced by the particular provisions of this chapter * * ” The question whether section 9-204(5), regarding the coverage of future advances by a security agreement, is such a provision is made more difficult by the Massachusetts Code Comment to section 1-103. This Comment states:
“The provision, however, is not as broad as would first appear. It must be read in the light of the five purposes and policies which, under § 1— 102, the interpretation of the Code must promote.”
These purposes and policies are “to simplify, clarify and modernize the law * * * to permit the continued expansion of commercial practices * * * [and] to make uniform the law among the various jurisdictions.” Mass.Gen. Laws Ann. ch. 106, § 1-102 (1958).
To the extent that the legal significance of documents may be varied and enlarged by other documents evidencing an understanding of the immediate parties to a transaction, we suspect that the law of commercial transactions will not achieve the stated purposes. The basis of the trouble here is that appellee used an inappropriate form to do what it apparently wished. It not only chose to prop up its inadequate security agreement with a narrative recitation on a note of the same date but persisted on at least four other occasions in doing the same thing.
In a commercial world dependent upon the necessity to rely upon documents meaning what they say, the explicit recitals on forms, without requiring for their correct interpretation other documents not referred to, would seem to be a dominant consideration. If security agreements which on their face served as collateral for specific loans could be converted into open-ended security arrangements for future liabilities by recitals in subsequent notes, much needless uncertainty would be introduced into modem commercial law. In effect, notes would take on the character of security agreements.
Certainly such equities as appellant can claim here would be unavailing as against an innocent third party who had extended credit on the basis of the assumption that the July 30, 1963 security agreement was no longer effective after payment of the note it purported to secure. But appellee, the trustee in bankruptcy, stands precisely in the position of a lien creditor without knowledge of a security interest before it is perfected under section 9-301 of the Code.
Affirmed.
The subsequent notes differed only in dropping a reference to a security agreement dated May 6, 1963. This agreement, apparently deemed not relevant by both parties, does not appear in the record before us.
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_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. James Lynn HOOTON, Defendant-Appellant.
No. 80-1340.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 8, 1981.
Decided Nov. 30, 1981.
Charles Peter Diamond, O’Melveny & Myers, Los Angeles, Cal., for defendant-appellant.
John W. Spiegel, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Brad D. Brian, Asst. U. S. Atty., Los Ange-les, Cal., on brief.
Before NELSON and NORRIS, Circuit Judges, and THOMPSON, District Judge.
Honorable Gordon Thompson, Jr., United States District Judge, Southern District of California, sitting by designation.
GORDON THOMPSON, Jr., District Judge.
James Lynn Hooton appeals from his conviction of a single count of engaging in the business of dealing in firearms without a federal license in violation of 18 U.S.C. § 922(a)(1). Hooton was initially tried in January, 1980. The jury was unable to reach a unanimous verdict, and the judge declared a mistrial. Hooton was retried in March, 1980. The jury returned a verdict of guilty, and the court sentenced Hooton to a period of probation.
On appeal Hooton raises several issues. We deal with each seriatim, incorporating the relevant facts into the discussion of each issue.
YOLUNTARINESS OF STATEMENTS
In June 1977, Hooton purchased a machine gun from an undercover police officer. During negotiations for the sale, the officer had told Hooton the machine gun was stolen. Hooton was arrested. That night, pursuant to a state search warrant authorized only for daytime service, police officers searched Hooton’s apartment for stolen handguns and machine guns. The officers seized approximately 25 index cards listing gun transactions. The local authorities forwarded these records to Special Agent Campbell of the Bureau of Alcohol, Tobacco and Firearms (ATF). Agent Campbell began an investigation of Hooton for possible unlicensed dealing in firearms and other federal firearms violations.
Hooton believed that one Joseph Porrazzo had “set him up” in the undercover machine gun transaction. Porrazzo was a licensed firearms dealer from whom Hooton had obtained many of his guns. Porrazzo was also a potential prosecution witness in the state case against Hooton. Hooton went to law enforcement authorities in an attempt to instigate prosecution of Porrazzo for assorted criminal activities.
In March, 1978, Hooton and his attorney, Michael Luros, contacted ATF Agent Riggs. They arranged an interview to present Hoo-ton’s allegations against Porrazzo. Hooton contends that he entered into an immunity agreement with Agent Riggs at the outset of the interview. Under the agreement, Hooton would be an “unindicted coconspirator” in any prosecution of Porrazzo. Following the interview, Agent Riggs ran a routine check on Hooton. He discovered that Hooton was under investigation by another ATF office for illegal gun dealing. Agent Riggs then contacted Agent Campbell to discuss the Hooton investigation.
On April 6, 1978, Agent Riggs arranged another interview with Hooton and his attorney. At this interview, Agent Riggs took a handwriting exemplar from Hooton and asked him questions from a list provided by Agent Campbell concerning Hooton’s gun transactions and use of aliases. At the outset of the April interview, Agent Riggs advised Hooton that he had the right (among others) to remain silent, but that anything he said could be used against him in court. Hooton said he understood those rights. Hooton and his attorney each signed a written waiver which included a declaration that Hooton was answering questions “freely and voluntarily . . . without any promise of reward or immunity.” This declaration appeared immediately above Hooton’s signature.
Hooton brought a motion to suppress his April 6 statements. He contended that the statements were involuntary because he believed his promise of immunity was still in effect at the time of the April interview. The trial court denied the motion. On appeal, Hooton argues that the court applied the wrong legal standard; he contends that the trial court “erroneously concluded that the Miranda warnings given to Mr. Hooton precluded him from contesting the admissibility of his statements” and that the court therefore “failed to reach the decisive issue [of] whether under the totality of circumstance, Hooton’s statement was ‘the product of [his] free and rational choice.’ ” Hooton urges this court to assess the voluntariness of Hooton’s statements by making an independent examination of the record.
However, a review of the record demonstrates that the trial court did not let the fact that Hooton received Miranda warnings predetermine its ruling on Hooton’s motion to suppress. The trial court denied the motion only after listening to and evaluating the testimony of Hooton, Mr. Luros and Agent Riggs. The court expressly stated that it had considered all the facts and circumstances in reaching its decision on Hooton’s motion. Therefore, the trial court’s ruling on the voluntariness issue is subject to the “clearly erroneous” standard of review.
Hooton’s motion to suppress his statements claimed that Hooton was misled by a promise that he would not be indicted. In denying the motion, the trial court implicitly found Hooton’s April 6 statements to be. voluntary. The trial court’s ruling finds support in the record. The trial court conducted an evidentiary hearing at which both Hooton and his attorney, Mr. Luros, testified. Hooton had orally waived his constitutional rights. He had signed a document which reiterated his waiver of rights and which explicitly stated — directly above the signature line — that Hooton would be answering questions without any promise of immunity. Hooton had signed the written waiver in the presence of Mr. Luros. Mr. Luros had also signed the waiver form. The denial of Hooton’s motion to suppress was not clearly erroneous.
LIVE-WITNESS TESTIMONY
Police seized records of Hooton’s gun transactions in June, 1977, while executing a state warrant which the government has conceded was improperly executed at night. These records prompted ATP Agent Campbell to begin investigating Hooton for possible firearms violations. Agent Campbell interviewed a number of witnesses whose names appeared on Hooton’s records. He did not show any of the witnesses the documents obtained in the search, and he did not refer to any specific information contained in the documents concerning Hooton’s gun transactions. Three of these witnesses — Joseph Bogar, John Koppel and James Trapa-ni — testified for the government. Hooton moved to suppress the testimony of these witnesses. The trial court admitted their testimony under the authority of United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). The court found that specific factors emphasized in Ceccolini were present in this case.
In Ceccolini, a police officer’s illegal search of an envelope in the defendant’s flower shop led to the discovery of the key government witness in the defendant’s perjury trial. The Court held that the degree of attenuation between the illegality and the testimony was sufficient to dissipate the connection. The Court balanced the benefits of the exclusionary rule against its costs. In applying the rule to live-witness testimony in light of this balance, the Court noted that the following material factors are to be considered: the length of the “road” between the fourth amendment violation and the testimony of the witness at trial; the degree of free will exercised by the witness; and the fact that exclusion of the witness’ testimony “would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby.” Id. at 277, 98 S.Ct. at 1061. The Court determined that since the cost of excluding live-witness testimony often will be greater than the deterrent effect such exclusion would have, “a closer, more direct link between the illegality and [live-witness] testimony is required” before a court must exclude such evidence. Id. at 278, 98 S.Ct. at 1061.
Hooton argues that Ceccolini is inapplicable to the live-witness testimony in this case. He first contends that the police officers who searched his apartment were seeking the types of documents that ultimately were turned over to the ATF. Therefore, he argues, the suppression of the testimony would have a significant deterrent effect. However, the search warrant authorized the search of the “rooms, cabinets, and storage areas” of Hooton’s apartment for “two stolen handguns, and machine guns, . . . [and] all documents, papers, and items tending to show the person in cont[rol] of the above locations.” The warrant did not authorize the seizure of documents relating to Hooton’s ownership of various firearms as Hooton asserts. The district court found that the local authorities did not conduct the search in order to obtain evidence of the federal firearms offense with which Hooton was charged. This finding is not clearly erroneous. Thus, as in Ceccolini, suppression of the testimony in this case would not have had an appreciable deterrent effect.
Hooton also argues that few, if any, attenuating factors are present in this case. He asserts that the path from the illegal search to the development of testimony was straight and uninterrupted: the illegally-seized material prompted the federal investigation and identified potential witnesses. He further argues that the witnesses did not testify voluntarily; their appearance at trial was compelled by subpoena.
In determining whether a significant attenuation between police misconduct and live-witness testimony exists, the court must assess the effect of the search on the exercise of the witness’ free will. Where police misconduct did not induce the witness’ cooperation, the testimony will not be suppressed even though the unreasonable intrusion was one step in a series of events that led to the witness testifying. United States v. Leonardi, 623 F.2d 746, 752 (2d Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980). The court should consider: (1) the stated willingness of the witness to testify; (2) the role played by the illegally-seized evidence in gaining the witness’ cooperation; (3) the proximity between the illegal behavior, the witness’ decision to cooperate and the actual testimony at trial; and (4) the police motivation in conducting the search. Id.
In the present case, the trial court found that tainted evidence from the search was not used to coerce or induce the testimony of the witnesses. The witnesses “[had] an opportunity to think over their responses and then they opted to talk and make statements to the investigators in the case.” In interviewing the witnesses, the investigating agents made no specific reference to the material that was discovered in the search; the documents were not shown to prospective witnesses to refresh their recollection or to pressure them to make statements. The illegally-seized evidence played no part in securing the witnesses’ cooperation.
The trial court noted that most of the initial interviews with the witnesses took place several months after the search; the testimony at trial took place almost three years after the search. As set forth earlier, the police conducted the search to obtain stolen firearms and documents that would show who controlled the areas searched. They were not searching for evidence of federal firearms offenses. Thus, the trial court’s refusal to suppress the testimony is supported by three of the four factors enumerated in Leonardi.
Hooton challenges the willingness of the witnesses to testify. He argues that two witnesses were reluctant to cooperate with the ATF: Koppel had “deep [anti-ATF] feelings about firearms registration”; Tra-pani was reluctant to discuss the case until reassured that the investigator was not seeking information for use in the state prosecution pending against him and Hoo-ton. However, despite the possible initial reservations of these witnesses, the trial court found that they made “free and voluntary” statements “after sufficient reflection.”
Hooton also attempts to distinguish Ceccolini by suggesting that Ceccolini applies only to “good-citizen” witnesses who are testifying “out of civic duty.” However, this court will not impose such a limitation. See United States v. Leonardi, 623 F.2d at 750, 752 (unindicted coconspirator testifying pursuant to a plea bargain); United States v. Brookins, 614 F.2d 1037, 1043 (5th Cir. 1980) (testimony partially induced by a grant of immunity); United States v. Stevens, 612 F.2d 1226, 1229 (10th Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980) (coconspirator testified pursuant to plea bargain). Cf. United States v. Scios, 590 F.2d 956 (D.C.Cir.1978) (en banc) (testimony given solely to avoid being jailed for contempt not sufficiently an act of free will to purge the primary taint). The trial court properly admitted the testimony under Ceccoiini.
VINDICTIVE PROSECUTION
Hooton contends that the trial court should have dismissed the indictment on the ground that he was the subject of vindictive prosecution. Hooton asserts that Agent Campbell caused the United States Attorney’s office to seek a federal indictment in order to retaliate against Hooton for filing various civil actions against Agent Campbell and the government. The indictment was returned in July, 1979. Hooton’s civil actions consisted of an administrative tort claim filed in May, 1978, with the Department of the Treasury and two lawsuits filed in state and federal court. Hooton also contends that Agent Campbell was “angered” by Hooton’s charges against Agent Campbell’s “close friend”, Joseph Porrazzo. Agent Campbell denied these allegations in his testimony at the motion hearing. He further testified that the existence of the administrative tort claim did not affect his actions, that he never urged the United States Attorney’s office to prosecute Hoo-ton (although he recommended prosecution) and that he never expressed disappointment at the delay in reaching a prosecutive decision. The district court denied Hooton’s motion to dismiss the indictment.
Hooton has labeled his claim one of “vindictive” prosecution and argues that the standard set forth for vindictive prosecution cases should govern this issue. This standard provides that the mere appearance of vindictiveness gives rise to a presumption of a vindictive motive; the burden is then shifted to the prosecution to show that independent reasons or intervening circumstances dispel the appearance of vindictiveness and justify its decisions. A claim of vindictive prosecution usually arises when the government increases the severity of alleged charges — for example, by re-indicting a defendant — in response to the exercise of constitutional or statutory rights. United States v. Motley, 655 F.2d 186 (9th Cir. 1981); United States v. Burt, 619 F.2d 831 (9th Cir. 1980); United States v. Griffin, 617 F.2d 1342 (9th Cir.) cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980); United States v. Ruesga-Martinez, 534 F.2d 1367 (9th Cir. 1976). This line of cases stems from two Supreme Court cases: North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (trial court’s reasons for imposing heavier sentence upon retrial must affirmatively appear) and Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974) (extended rule in Pearce to protect accused against apprehension of prosecutorial vindictiveness: indictment on increased charges violates due process when the circumstances “pose a realistic likelihood of ‘vindictiveness’ ”).
The government argues that since Hooton is challenging the initial filing of the indictment, the standard for claims of “selective” or “discriminatory” prosecution should apply. Under this standard, the defendant has the burden of demonstrating (1) that others similarly situated generally have not been prosecuted for similar conduct and (2) that his selection for prosecution was based on an impermissible ground such as race, religion or his exercise of his right to free speech. United States v. Erne, 576 F.2d 212 (9th Cir. 1978); United States v. Scott, 521 F.2d 1188 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).
This court holds that the mere filing of an indictment can support a charge of vindictive prosecution. However, in this case, the government has shown that the only alleged animus was that of Agent Campbell, who had no charging authority. Hooton failed to show even an appearance of vindictiveness on the part of those members of the United States Attorney’s office who made the prosecutive decision. The record supports the trial court’s denial of Hooton’s motion to dismiss the indictment.
EVIDENCE OF OTHER ACTS UNDER FED.R.EVID. 404(b)
Federal Rule of Evidence 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Hooton argues that the trial court erred in allowing the government to present evidence of three acts for which he had not been charged: 1) firearm sales made prior to the indictment period; 2) a business arrangement between Joseph Porrazzo and Hooton in which Hooton ordered guns through Porrazzo for a share of the profits upon resale in Porrazzo’s shop; and 3) Hoo-ton’s involvement in assisting Porrazzo to distribute guns received from Eric Linder.
The government relied in pretrial submissions and during trial on two permissible uses of other act evidence to establish intent and to demonstrate a common scheme or plan. Hooton argues that intent was not a material issue in the case because his defense was that the “nature and quantum of his gun-related activities were insufficient to prove him to be a dealer.” Hooton argues further that the evidence of other acts was “wholly unrelated” to the transactions for which he was tried and thus cannot be admissible as part of a common scheme or plan. The government argues that the evidence of other acts was relevant to show that Hooton acquired guns for the purpose of selling them, not for the purpose of collecting them.
The determination of admissibility under Rule 404(b) rests in the discretion of the trial judge. See United States v. Martin, 599 F.2d 880, 889 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979); Fed.R.Evid. 404(b), Note of Advisory Committee on Proposed Rules (“No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.”). The Ninth Circuit has set out a three-part test for determining the admissibility of other act evidence to prove intent under Rule 404(b):
1) the prior act is similar and close enough in time to be relevant,
2) the evidence of the prior act is clear and convincing, and
3) the probative value of the evidence outweighs any potential prejudice. United States v. Bronco, 597 F.2d 1300, 1302-03 (9th Cir. 1979); United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977).
In this ease, Hooton is charged with engaging in the business of gun dealing without a license. Thus, evidence of his intent to engage in business as opposed to an intent merely to enhance his gun collection was an essential part of the government’s proof. United States v. Angelini, 607 F.2d 1305, 1309-11 (9th Cir. 1979) (evidence of scienter properly admitted in prosecution of gun dealer asserting “collector” defense). Moreover, even in general intent crimes, the government can offer evidence of other acts as part of its case-in-chief when it is obvious that the defense will raise lack of intent as a defense. United States v. Hearst, 563 F.2d 1331, 1337-38 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). In this case, it was obvious that Hooton would raise lack of intent as a defense. Hooton had relied on a “collector” defense at the first trial which had resulted in a hung jury, and Hooton’s opening statement at the second trial presented the theme that his transactions were exclusively motivated by his collecting interests. The other acts took place immediately preceding or contemporaneous with the indictment period. The other acts were the same type of transactions — gun sales — as the charged crime. The evidence of these other acts was highly relevant to determine Hooton’s intent. Apart from the probative value in establishing Hooton’s motivation or intent, these gun sales were not significantly prejudicial. An individual gun sale is not a crime in itself, unless it is part of an overall pattern of unlicensed gun dealing.
The evidence of the prior acts was clear and convincing. The existence of the Hoo-ton-Porrazzo business arrangement was established by stipulation. During the tape-recorded April 6 interview with Agent Riggs, Hooton admitted receiving guns from Porrazzo who received them from Eric Linder’s dealership. Hooton played an active role in the distribution of the Linder guns. At the pretrial hearing, Hooton failed to attack the evidence of the gun sales outside the indictment period but rather attacked the relevancy and possibility of prejudice in allowing this evidence.
The trial court properly instructed the jury that the evidence of other acts could be used to determine intent but could not be used to determine whether the accused committed any act alleged in the indictment. The trial court also properly instructed the jury that “where proof of an alleged similar act done at some other time or place is clear and conclusive, the jury may, but is not obliged to, draw the inference and find that in doing the act charged in the indictment the accused acted willfully and not because of mistake or accident or other innocent reason.”
The trial court did not abuse its discretion in admitting the evidence of other acts under Fed.R.Evid. 404(b).
EXCLUSION OF EVIDENCE CONCERNING FREQUENCY AND NUMBER OF GUN TRANSACTIONS ENGAGED IN BY TYPICAL HOBBYIST COLLECTORS
Hooton contends that he attempted to provide the jury with an objective measure of the level of trading by a typical hobbyist collector against which his conduct could be measured, citing United States v. Van Buren, 593 F.2d 125,126 (9th Cir. 1979) (“[T]he record establishes Van Buren’s willingness to trade or sell firearms, the profitability of his transactions, and the fact that his activity was greater than the occasional sales normally entered into by a hobbyist.’’). Hooton attempted to offer the evidence through the testimony of gun collectors, of gun dealers who cater to hobbyists and of ATF Agents who enforce the gun laws. Hooton argues that the trial court erred in rebuffing each of these attempts. The trial court excluded the evidence with the admonition that only Hooton was on trial. However, defense counsel did elicit extensive testimony from approximately twenty prosecution and defense witnesses concerning the activities of gun collectors.
Federal Rule of Evidence 403 provides in part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Rule 403 confers broad discretion on the trial judge. United States v. Hearst, 563 F.2d at 1348-49. The trial judge’s ruling on excluding evidence on the ground that it would create undue delay, waste time, or needlessly present cumulative evidence should be reversed only if the decision constitutes an abuse of discretion. See Id. at 1349; Hamling v. United States, 418 U.S. 87, 127, 94 S.Ct. 2887, 2912, 41 L.Ed.2d 590 (1974) (“The District Court retains considerable latitude even with admittedly relevant evidence in rejecting that which is cumulative, and in requiring that which is to be brought to the jury’s attention to be done so in a manner least likely to confuse that body. We agree with the Court of Appeals that the District Court’s discretion was not abused.”).
In this case, the excluded evidence was marginally relevant. However, extensive testimony was admitted on the activities of gun collectors. The trial judge allowed Hooton to make his offer of proof and then exercised his authority to prevent needless presentation of cumulative evidence. The trial judge properly exercised his discretion in excluding the evidence under Rule 403.
ALLEN CHARGE
After six days of evidence and argument, the jury began its deliberations on March 12, 1980. The jury continued deliberating throughout the next day, twice asking for further instructions. On March 13, the jury announced it was deadlocked. The next morning, the trial judge delivered an Allen charge. Early that afternoon, the jury returned a verdict of guilty.
Hooton argues that the use of the Allen charge was coercive. He cites one of the juror notes of March 13 that stated “Please send us home. Some of us have family obligations, i. e., children at home alone.”
The Ninth Circuit has in “countless cases” approved an Allen charge. E. g., United States v. Beattie, 613 F.2d 762, 764 (9th Cir.), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980). To determine the propriety of the trial court’s use of the Alien charge, this court must examine the instruction “in its context and under all the circumstances” to see if it had a coercive effect upon the jury. Id. (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965)).
Unlike United States v. Contreras, 463 F.2d 773 (9th Cir. 1972), in which the trial court gave the jury an Allen charge after nearly eight hours of deliberation and prior to any indication in the record that the jury was unable to reach a verdict, this case does not involve a premature Allen charge. The Allen charge in this case was delivered on the third day of deliberations after the jury notified the judge that it was deadlocked.
The Ninth Circuit in Beattie relied on four factors to determine that the use of the Allen charge in that case was not coercive:
1) The form of the instruction;
2) The period of deliberation following the Allen charge;
3) The total time of jury deliberations; and
4) The indicia of coerciveness of pressure upon the jury.
The first three factors support the use of the Allen charge in this case — 1) the charge given by the trial judge was from 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 18.14 (3d ed. 1977); 2) as in Beattie, the jury received the Alien charge in the morning and returned the verdict in the afternoon, whereas the jury in Contreras returned its verdict thirty-five minutes after receiving the Allen charge; 3) the jury reached a verdict on the afternoon of the third day of its deliberations after a six-day trial; the jury in Beattie reached a verdict on the third day of deliberation after a four-day trial. -
Finally, the record reveals no indicia of coerciveness or pressure upon the jury. The trial judge was unaware of how the jury stood, he gave the Allen charge only once, and he avoided coercive deadlines or threats. The “child care” request, when taken in context, reveals no “atmosphere of judge and jury frustration over a jury’s inability to break the deadlock.” 613 F.2d at 776. Rather, the request was made at 5:30 p. m. on the second day of deliberations, and the jury was excused at 5:40 p. m. until the next court session.
The trial judge acted within his discretion in giving the Allen charge in this case.
CONCLUSION
Hooton’s conviction is affirmed in all respects.
. This court agrees with Hooton’s position that once the government has granted immunity to a person, if the government later wishes to question that person with a view toward using the answers against him or her, the government has the responsibility of giving specific notice that the immunity previously granted is being withdrawn. In this case, Hooton received such notice.
. The Treasury denied the tort claim. Hooton abandoned that claim by allowing the appeal period to lapse. The federal complaint was served in November, 1979; Agent Campbell learned of the state court suit in December, 1979 — four months after the indictment was returned in July 1979.
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_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. Eli BOLDEN, Appellant.
No. 71-1565.
United States Court of Appeals, Eighth Circuit.
Submitted May 12, 1972.
Decided June 14, 1972.
Alfred I. Harris, and Morton L. Schwartz, St. Louis, Mo., on brief for appellant.
Daniel Bartlett, Jr., U. S. Atty., and David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.
Before VOGEL, LAY and BRIGHT, Circuit Judges.
PER CURIAM.
Defendant-appellant, Eli Bolden, was found guilty by a jury of having in his possession certain mail matter and an article contained therein (a Master Charge credit card) knowing the same to have been stolen, in violation of 18 U.S. C.A. § 1708. He appeals from the judgment of conviction. We affirm.
On April 10, 1971, while at an E. J. Korvette Store located in Cool Valley, Missouri, Bolden presented a Master Charge credit card for payment of a suit which he wanted to purchase. The credit card in question had been issued and mailed to James Sayles of St. Louis, Missouri. Because of the amount of the purchase, the cashier called Master Charge for an authorization. As a result, Robert Earl Cope, who is a security detective at the E. J. Korvette Store in Cool Valley, received a call from Master Charge, stating that someone was attempting to use a stolen credit card in the store. Security Officer Cope then proceeded to the men’s check-out, took the Master Charge plate from the cashier and inquired as to whose card it was. Bolden responded that it was his. Cope thereupon asked appellant to accompany him to the store office in order to “straighten out the problem”.
When asked for personal identification, Bolden produced a card in his own name from the Missouri State Psychiatric Hospital. After seeing the card, Security Officer Cope immediately notified the Cool Valley Police, who then effected the arrest of appellant. Cope never placed appellant under arrest, nor did he restrain him in any way.
On appeal, appellant Bolden argues that he is entitled to a new trial because (1) he was not given the Miranda warnings by Security Officer Cope; (2) the United States Marshal’s office was unable to locate one Tony Gaskin, a potential defense witness; and (3) the trial court erred in the giving of certain instructions.
While it is true that Security Officer Cope did not give appellant the warnings required by Miranda, it is also true that such warnings are only required when there is a “custodial interrogation”, which is defined by the Supreme Court as “ * * * questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 1965, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694.
In view of the facts before us, we feel that Bolden was not under “custodial interrogation” because (1) Cope did not restrain appellant’s freedom in any significant way; (2) appellant voluntarily admitted that he had possessed the card in question; (3) appellant voluntarily gave evidence of his true identity; (4) appellant voluntarily accompanied Cope to the store office; and (5) Security Officer Cope was not a “law enforcement official” acting in a situation where the warnings would be necessary. Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Birnstihl, 9 Cir., 1971, 441 F.2d 368; United States v. Antonelli, 2 Cir., 1970, 434 F.2d 335. Cf. United States v. John R. Engle, 8 Cir., 1972, 458 F.2d 1017; Ping v. United States, 8 Cir., 1969, 407 F.2d 157, cert. denied, 1969, 395 U.S. 926, 89 S.Ct. 1784, 23 L.Ed.2d 244; Cohen v. United States, 8 Cir., 1968, 405 F.2d 34, cert. denied, 1968, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478.
Bolden next argues that he was prejudiced in that the subpoena issued for a defense witness was returned “Not Found”. Bolden argues that the witness, Tony Gaskin, would have corroborated other testimony to the effect that Gaskin gave the Master Charge card to appellant. Although the subpoena was returned “Not Found”, nineteen days elapsed between the return of the subpoena and the date of the trial. Appellant did not seek either an arrest warrant or a continuance. Additionally, members of appellant’s family admitted that they saw the witness during the time in question. Clearly the government cannot be required to be successful in its efforts to subpoena witnesses in every instance. All that is required is a good faith effort to secure the service of process. Maguire v. United States, 9 Cir., 1968, 396 F.2d 327, cert. denied, 1969, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792. The contention of appellant is without merit.
Finally, appellant submits that his trial was prejudiced by the instructions given by the trial court. We have reviewed the instructions in their entirety and find no error therein.
Affirmed.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_state
|
26
|
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".
Captain Robert S. COLSON, Jr., Appellant, v. Major General BRADLEY and Melvin Laird, Appellees.
No. 72-1537.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 15, 1973.
Decided April 25, 1973.
Francis L. Ruppert, Clayton, Mo., for appellant.
Wendell K. Smith, Asst. U. S. Atty., Kansas City, Mo., for appellees.
Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.
Sitting by designation.
LAY, Circuit Judge.
On March 20, 1972, while serving as a captain in the United States Army, the petitioner, Robert S. Colson, Jr., filed in the District Court for the Western District of Missouri a petition to enjoin his pending discharge from the service on April 6, 1972, and for mandamus relief. The relief sought by petitioner was a review of his Article 138 complaint, 10 U. S.C. § 938, for correction of a low efficiency report and also an award of readjustment pay upon his discharge, 10 U. S.C. § 687(a). He further sought for medical reasons to enjoin respondents from discharging him. The district court found that Colson was being discharged by the Department of the Army Active Duty Board (hereinafter DAAD Board) for reasons other than any medical infirmity or the low efficiency rating given by his superior officer, Lieutenant Colonel Zenz. Thus, extraordinary relief by mandamus was refused.
On this appeal; petitioner attacks the denial of the writ of mandamus based on the Army’s failure to process his Article 138 complaint and its refusal to award readjustment pay. We reverse and order the issuance of the writ of mandamus.
Petitioner entered active duty in the Army on June 13, 1967. After five years of service Captain Colson would have been eligible for readjustment pay upon his discharge, in this case allegedly $10,670.00. At the time of his original discharge date, April 6, 1972, he had served almost four years and ten months in the service, some sixty-eight days less than five years. We need not reach this issue relating to petitioner’s readjustment pay since the issuance of a writ of mandamus requiring the processing of petitioner’s Article 138 complaint will necessitate Captain Colson’s reinstatement in the armed forces until such time that full consideration of .his entire Army record can be again surveyed for purposes of proper discharge.
After distinguished service in Vietnam, Captain Colson was rotated to Fort Leonard Wood, Missouri, in February of 1971 where he served as a Training Officer at the Army Engineers Training Corps. Unknown to the Army, Colson began to suffer from narcolepsy in the late months of his military service. He alleges because of his illness his abilities to perform his military duties began to deteriorate. His superior officer, Lieutenant Colonel Zenz, not knowing of petitioner’s illness, assessed his performance as complacent and ineffective and gave him an extremely low efficiency rating. Narcolepsy is admittedly a disease of difficult diagnosis. It is a neurological illness characterized by sleep paralysis, loss of muscle tone and hallucinations. It can, however, be medically controlled. Army regulations recognize the disease of narcolepsy and require that no personnel can be discharged prior to the time that the disease is medicinally controlled. Army Reg. 40-501. It is admitted that it was not until approximately May 11, 1972, that Colson’s illness was under medical control.
Captain Colson was given his low efficiency rating on September 9, 1971. He sought redress in November of 1971 under Article 138 and Army Regulation 27-14 which require the officer exercising general court-martial jurisdiction over petitioner’s commanding officer to investigate and review the facts underlying the complaint. Colson claimed that his efficiency record was inaccurate and also that it should be reviewed in light of the subsequent diagnosis of narcolepsy. Colson’s superior officer, Major General Bradley, refused to investigate and review the report because he concurred in its recommendation of dismissal and felt he did not have jurisdiction over the matter. This was clearly erroneous. General Bradley, as the officer who exercised general court-martial jurisdiction over Colonel Zenz, the officer against whom the complaint was made, at the time of the incidents giving rise to the complaint and at the time of the filing of the complaint, clearly had jurisdiction. Under the regulations General Bradley had the duty to investigate into the complaint in light of Captain Colson’s claim regarding the inaccuracy of the report and the effect of his unknown illness. Mandamus, of course, is the appropriate remedy against members of the armed forces who fail to follow the service’s own regulations. See Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Konn v. Laird, 460 F.2d 1318, 1319-1320 (7 Cir. 1972).
We turn then to the district court’s refusal to issue the writ on the ground that Captain Colson had already been recommended for discharge on grounds independent of the low efficiency record. The district court based its conclusion on two affidavits received into evidence over strenuous objection. The affidavits were from a personnel officer and a recorder of the DAAD Board who related that Colson’s discharge was recommended as early as September, 1971, and that it was processed without knowledge of the low efficiency report made by his immediate superior. Assuming these affidavits constituted competent evidence at trial, which they clearly did not, it is difficult to reconcile that Colson was being processed for discharge at a time when it is admitted his narcolepsy was not under medical control. This clearly was invalid under the Army’s regulations. See Army Reg. 40-501. Furthermore, the affidavits leave some doubt whether his efficiency rating was not in fact considered in some formal or informal way by the Board, if not by the Board’s investigators.
It may be true that a vast organization such as the United States Army may not on occasion know what in fact both its right and left hands are doing; however, the law deems it legally bound to have sufficient knowledge of all of its own records so as not to prejudice the individual rights of its service personnel. Thus, any consideration of Colson’s discharge while he was still suffering from narcolepsy which was not medically controlled must be vacated from his records. Moreover, we cannot assume that the ultimate discharge was done in disregard of Captain Colson’s entire service record including his low efficiency rating.
We find that mandamus relief to afford proper redress to Captain Colson under Article 138 should have been given. The issue was not shown to be moot.
Unfortunately, the preliminary injunction was dissolved and the Army was allowed to discharge Colson. Although only a member of the armed forces is entitled to redress under Article 138, petitioner’s rights cannot be denied on lack of standing since it was the Army’s error which led to his present nonmilitary status. Colson’s discharge should be vacated as of the date of its issuance, and he should be restored to the status he enjoyed at the time he filed his complaint; the commanding officer having jurisdiction of his complaint is ordered to review and investigate his claims, and the DAAD Board is required to stay his discharge until such time that petitioner’s entire service record is before it.
Judgment reversed and remanded with directions for the district court to issue the writ of mandamus against respondents in accordance with this opinion.
. Article 138, 10 U.S.C. § 938, provides:
“Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and talce proper measures for redressing the wrong complained of-, and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.” (Our emphasis.)
. For medical reasons, Colson was probably not eligible for discharge until approximately May 11, 1972. He was in fact discharged on June 30, 1972, following the dissolution of the trial court’s preliminary injunction.
. Petitioner served as a combat helicopter pilot from January to December of 1970. From this service he was awarded the Army Commendation Medal, the Air Medal nine times and the Bronze Star.
. For the text of Article 138, 10 U.S.C. § 938, see note 1 supra. Army Regulation 27-14 reads in part:
“9. Action by general court-martial convening mithority. Upon receipt of the complaint, the officer exercising general court-martial jurisdiction over the respondent may:
“a. If such action has not been taken by an intermediate commander, grant the redress requested, including restoration of rights, or if he lacks jurisdiction to grant such redress, forward the complaint to the jurisdiction which has authority to grant such redress, or “b. Delay consideration of the complaint in accordance with paragraph 3b, or
“c. Conduct an information inquiry into the complaint or direct an officer of his command senior to the respondent to do so on his behalf, or “d. Order an investigation in accordance with AR 15-0 with respect to the alleged wrong. Upon completion of his inquiry into the complaint and action thereon (approval or denial of the requested redress), the officer exercising general court-martial jurisdiction will forward the file in accordance with the procedures outlined in paragraph 10. . ."
. Jurisdiction is defined in Army Regulation 27-14:
“6. Jurisdiction. Jurisdiction to examine into complaints lies with the commander or his successor commander who exercised general court-martial jurisdiction over the respondent at the time of the incident giving rise to the complaint. In the event of the respondent’s transfer to another general court-martial jurisdiction, the action on the complaint may also be transferred if investigation or redress will be facilitated thereby. Intermediate commanders receiving complaints will transmit the complaint and accompanying papers without delay to the appropriate general court-martial convening authority. They may add pertinent material to the file or grant the redress requested and so note in the transmittal to the appropriate general court-martial convening authority.”
. The affidavits were not admissible as competent evidence. Botli were hearsay. Neither affiant was available for xiurposes of cross-examination.
. In fact, a letter from the Department of Army Active Duty Board received by petitioner on December 23, 1971, declared:
“[A]ll factors were considered, including your efficiency ratings, comments on your efficiency rei>orts, schooling, commendations, and types and varieties of assignments.”
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLASKOLITE, INC., Respondent.
No. 14875.
United States Court of Appeals Sixth Circuit.
Nov. 7, 1962.
Vivian Asplund, Washington, D. C., for petitioner, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., N. L. R. B., Washington, D. C., on the brief.
Helen F. Humphrey, Washington, D. C., for respondent, Samuel H. Porter, Columbus, Ohio, on the brief.
Before CECIL, Chief Judge, WEICK, Circuit Judge, and PECK, District Judge.
CECIL, Chief Judge.
This case is before the Court on a petition of the National Labor Relations Board for enforcement of its order issued against the respondent, Plaskolite, Inc., on November 29, 1961.
The Board found that the respondent violated section 8(a) (1) of the Act (Sec. 158(a) (1), Title 29 U.S.C.) by interfering with, restraining and coercing employees in the exercise of their right to engage in union activity.
The Textile Workers Union of America, AFL-CIO began a campaign to organize respondent’s employees, in August 1960. A representation petition was filed with the Board and on September 14th an election was held which was lost by the Union. The Union contested the election and it was set aside by the Regional Director. The complaint in the unfair labor practice case now before us contained some of the same acts of misconduct as were alleged in the objections to the election. The Board consolidated the two cases. It sustained the Regional Director in setting the election aside and found the respondent guilty of unfair labor practices. (134 N.L.R.B. No. 63.) Only the Board’s order pertaining to the unfair labor practices is before the Court on this review.
The alleged unfair labor practices occurred at respondent’s plant, in Columbus, Ohio, where it is engaged in the manufacture of custom plastic products. No question of jurisdiction is presented.
It is claimed that the employer, through its officers and foremen, threatened that the employees would have to take physical examinations and intelligence tests, if the Union prevailed and that, if they failed to measure up to required physical and mental standards, they would be discharged. Other claimed threats were made, such as the employees would have to work harder under the Union and that the job of one Smith, who was agitating for the Union, could be done away with. It was further claimed that the employer made promises of wage increases, if the Union did not come into the plant, and that the employees were interrogated as to their Union sympathies.
The trial examiner found a violation in each of these categories of charges. The Board sustained the examiner and found a violation of Section 8(a) (1) as above stated.
It is provided in Section 160(e), Title 29 U.S.C., “The findings of the Board with respect to question of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” Substantial evidence has been held to mean “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126.
We have reviewed the evidence as printed in the appendices and conclude that it substantially supports the find- ' ings of the trial examiner as affirmed by the Board.
The respondent discharged an employee, William O. Friend, on November 16, 1960. The discharge was alleged to be for cause. It was claimed by the employer that Friend could not read or write and could not make out a report, the use of which was inaugurated about the middle of October 1961, after the election.
The trial examiner found that Friend was discriminatorily discharged because of his Union activities and in order to discourage membership in and adherence to the Union. This was in violation of Section 8(a) (3) and (1) of the Act. This ruling was also supported by the Board.
Upon a review of the evidence on this charge, we conclude that considering the testimony as a whole and the logical inferences drawn therefrom by the examiner, his finding was supported by substantial evidence.
“It is well settled that the credibility of witnesses and the reasonable inferences to be drawn from the evidence are matters for determination by the Trial Examiner and the Board.” N. L. R. B. v. Bendix Corp., 299 F.2d 308, 310, C.A.6, cert. denied 83 S.Ct. 47. Where credibility accorded witnesses by the trial examiner is such as would justify conflicting inferences, with reference to a discharge, “we are not permitted to weigh the evidence, resolve its conflicting inferences, nor draw our own inferences therefrom. The Board’s choice between two conflicting views may not be set aside even though the court would justifiably have made a different choice had the matter been before it de novo.” 299 F.2d at page 310.
The objections of the Union to the election were based on two allegations: (1) A letter dated September 12, 1960, attempting to repudiate the rumor that the plant would close down for examinations, if the Union won, and (2) pre-election conduct of agents of the employer. The respondent claims that unfair labor practices cannot be based on either of these allegations.
We find no merit to this contention. If an election were won by the employer through illegal conduct and in violation of law, the Union was wronged and it had a right to have such an election set aside. Unfair labor practices whether by employer, employee or Union are a matter of public interest. This Court said, in N. L. R. B. v. Thompson, 6 Cir., 130 F.2d 363, 367: “We are, however, obliged to bear in mind that a proceeding under the National Labor Relations Act is not litigation between private parties even though the inquisitorial and corrective powers of the Board may not be invoked without a charge being lodged by individual employees or an employee union. It is a proceeding by a public regulatory body in the public interest. It is neither punitive nor compensatory but preventative and remedial in its nature. (Citations) As we said of orders of the Board in N. L. R. B. v. Colten, [6 Cir.] 105 F.2d 179, 182, ‘they are to implement a public social or economic policy not primarily concerned with private rights, and through remedies not only unknown to the common law but often in derogation of it.’ ”
Peyton Packing Co., 129 N.L.R.B. 1358, cited by counsel for the respondent, is not in point. In this case the Board held that it was not proper to twice litigate the same act of conduct as a violation of different sections of the Act.
Enforcement of the Board’s order is decreed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
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