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songer_initiate
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Thomas AMBROSE, Appellant, v. UNITED STATES of America, Appellee.
No. 16767.
United States Court of Appeals Ninth Circuit.
June 27, 1960.
Russell E. Parsons, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Timothy M. Thornton, Asst. U. S. Attys., Los Angeles, Cal., for appel-lee.
Before CHAMBERS, MATHEWS and ORR, Circuit Judges.
MATHEWS, Circuit Judge.
On April 15,1959, in the United States District Court for the Southern District of California, Central Division, appellant (Thomas Ambrose), Robert Hugh Poole and Junius Ambrose were indicted for violating 21 U.S.C.A. § 174. The indictment was in three counts. We are here concerned only with counts 2 and 3.
Count 2 alleged that on or about December 29, 1958, in Los Angeles County, California, appellant and Poole and Junius Ambrose “knowingly and unlawfully sold and facilitated the sale to Francis Jones of 286 grains of heroin, a narcotic drug, which, as [appellant and Poole and Junius Ambrose] then and there well knew, had been imported into the United States of America contrary to [21 U.S.C.A. § 173].”
Count 3 alleged that on or about December 29, 1958, in Los Angeles County, California, appellant and Poole “knowingly and unlawfully received, concealed, transported and facilitated the concealment and transportation of 286 grains of heroin, a narcotic drug, which, as [appellant and Poole] then and there well knew, had been imported into the United States of America contrary to [21 U.S. C.A. § 173].”
On motion of the Government, the indictment was dismissed as to Junius Am-brose. Appellant and Poole were arraigned, pleaded not guilty and had a jury trial. At the close of the Government’s evidence in chief, appellant and Poole-moved for judgments of acquittal Poole’s motion was granted. Appellant’s-motion was denied. Thereafter appellant adduced evidence in his own behalf, and the Government adduced evidence ire rebuttal. Appellant was found guilty on counts 2 and 3. A judgment of conviction was entered, sentencing appellant to be imprisoned for five years on each of counts 2 and 3, the sentences to run consecutively. This appeal is from that judgment.
Appellant’s brief does not contain a specification of errors denominated as such. It does, however, contain the following statement, which we shall treat as a specification: “The court erred in permitting the Government to offer evidence-in rebuttal by way of a motion picture showing the presence of [appellant] with Jones and Rumford, the policeman.”1 No other error or alleged error is mentioned or referred to in appellant’s brief-
The specification does not, as- required by our Rule 18, 28 U.S.C.A., quote-the grounds urged at the trial for the-objection, if any, to the evidence mentioned therein, quote the full substance of that evidence and refer to the page where* the same may be found. Hence we are not required to consider the specification. However, we have considered it and find no merit in it.
Appellant’s brief states: “This court should establish that an accused cannot be convicted of a crime solely upon the uncorroborated testimony of a purported accomplice.” The question thus attempted to be raised is not before us. In this case, there were six Government witnesses — Francis Jones and five others. None of the six was an accomplice of appellant. Appellant’s brief says that Jones was an accomplice of appellant, but the record shows he was not. Nor was appellant convicted solely upon Jones' testimony. Jones’ testimony was corroborated.
Except as indicated above, the sufficiency of the evidence to sustain appellant’s conviction is not here challenged. The record discloses no basis for such a challenge. The evidence was amply sufficient.
The judgment is affirmed.
Appellant was admitted to bail pending appeal. The bail then fixed indicates some apprehension by the court as to whether appellant would respond to further orders of the court, and that was before affirmance on appeal. Therefore, a serious question arises as to whether existing bail is now adequate. The order admitting appellant to bail is revoked. This is without prejudice to a new application being made in the district court for bail in the light of changed circumstances.
. Section 174 provides:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States * * * contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, * * * shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. * * *
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”
. Section 173 provides that, with inapplicable exceptions, it is unlawful to import or bring any narcotic drug into the: United States.
. See our Rule 18, 28 U.S.C.A.
. Rebuttal testimony included that of Carl Baker, a photographer, who identified a motion picture made by him on November 25, 1958. The picture was shown to-the jury, but was not made a part of the-record and is not before us.
. Meaning, we suppose, Francis Jones.
. Meaning, we suppose, William B. Rum-ford, a Government witness, who, from June, 1958, to May, 1959, was an agent of the Federal Bureau of Narcotics, but, at the time of the trial (June 23-24, 1959), was a policeman in Berkeley, California. That appellant was present with Jones and Rumford on November 25, 1958, was shown by evidence other than that mentioned in the specification.
. Ziegler v. United States, 9 Cir., 174 F.2d 439; Mosca v. United States, 9 Cir., 174 F.2d 448; Du Verney v. United States, 9 Cir., 181 F.2d 853; Lii v. United States, 9 Cir., 198 F.2d 109; Cly v. United States, 9 Cir., 201 F.2d 806; Gordon v. United States, 9 Cir., 202 F.2d 596; Lee v. United States, 9 Cir., 238 F.2d 341; Elkins v. United States, 9 Cir., 266 F.2d 588; Naval v. United States, 9 Cir., 278 F.2d 611.
. Thus, in effect, we are asked to overrule Hass v. United States, 9 Cir., 31 F.2d 13; Westenrider v. United States, 9 Cir., 134 F.2d 772; Todorow v. United States, 9 Cir., 173 F.2d 439; Catrino v. United States, 9 Cir., 176 F.2d 884; Doherty v. United States, 9 Cir., 230 F.2d 605; Cowell v. United States, 9 Cir., 259 F.2d 660; and Audett v. United States, 9 Cir., 265 F.2d 837. This we decline to do.
. Cf. Marchese v. United States, 9 Cir., 264 F.2d 892.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_casetyp1_1-3-1
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P
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Dennis G. ANTZOULATOS, Defendant-Appellant.
No. 91-1306.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 13, 1991.
Decided May 7, 1992.
As Amended May 29, 1992.
R. Jeffrey Wagner, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Milwaukee, Wis., for U.S.
James M. Shellow (argued), Robert R. Henak, Dean A. Strang, Shellow, Shellow & Glynn, Milwaukee, Wis., for Antzoulatos.
Before CUMMINGS, WOOD, Jr., and KANNE, Circuit Judges.
Judge Wood, Jr., assumed senior status on January 16, 1992, which was after oral argument in this case.
CUMMINGS, Circuit Judge.
Dennis G. Antzoulatos, a used car dealer in Milwaukee, pled guilty to one count of conspiring to launder money in violation of 18 U.S.C. § 1956(a)(1)(B) and was sentenced to 52 months in prison. He now appeals, claiming that the statute as applied to him violates his due process rights under the Constitution. The plea agreement Antzou-latos signed preserves his right to appeal this issue. Antzoulatos also appeals his sentence, arguing that the district court erred in not giving him credit for acceptance of responsibility under the Guidelines.
I.
Antzoulatos owned and operated a used car dealership in Milwaukee, Wisconsin, under the name of D & S Auto Sales (“D & S”) between December 1985 and February 1989, and under the name of Olympic Auto Sales between February 1989 and September 1990. During this time period, Antzou-latos sold cars to Billy Cannon, James Ver-ser, Greg Farrow, Errol Jackson and Hays Barker, all of whom Antzoulatos admits were involved in selling cocaine during that time. Antzoulatos titled the cars in names other than those of the above drug dealers — on several occasions the cars were titled in the name of D & S. Antzoulatos denies that he knew at the time he sold the cars that these men were drug dealers or that the mistitling was done for the purpose of hiding the proceeds of drug transactions.
A federal grand jury handed down a four-count indictment against Antzoulatos and his employee Grace Jim on September 11, 1990. Count one of the indictment charged Antzoulatos with being a member of a conspiracy whose object was to conduct financial transactions involving the proceeds of specified unlawful activity involving controlled substances in violation of 18 U.S.C. § 1956(a)(1)(B). The indictment alleged that the defendant or Grace Jim performed a number of overt acts in furtherance of the conspiracy, including selling numerous cars and trucks to drug dealers and titling them in other persons’ names between 1986 and 1990. One transaction with Errol Jackson is outlined in detail by the indictment. On January 28, 1987, Antzoulatos allegedly bought a 1985 Mercedes-Benz 380 SE from the Metro Milwaukee Auto Auction by check for $32,525 on behalf of Errol Jackson. On that day, Antzoulatos deposited $25,000 in cash in the checking account of D & S, and the following day made separate deposits of $6,500 and $1,000 to that account. This car was sold on August 2, 1988, to Billy Cannon. A state of Wisconsin application for title listed D & S as the seller when it was in fact purchased from Errol Jackson. On December 19, 1989, Antzoulatos advised Billy Cannon to lie to federal agents if questioned about the purchase of the 1985 Mercedes-Benz.
The Pre-Sentence Report presents in more detail Antzoulatos’ close relationship with Jackson and the other cocaine dealers. Greg Farrow purchased two cars from Ant-zoulatos, and told him that he did not want the cars titled in his name because he did not want them linked to him. The vehicles were therefore placed in the name of Farrow’s mother and girlfriend. James Verser purchased four cars from Antzoulatos, and also told him he did not want to be linked to the cars. The cars were titled in the name of others; one of Verser’s cars was titled in the name of his one-year-old nephew. Hays Barker purchased approximately 20 cars from Antzoulatos, many of which were titled in fictional names. According to the Pre-Sentence Report, Barker would use a particular car for two to three weeks for delivering drugs and then trade it in on the purchase of another vehicle.
Errol Jackson had a particularly close relationship with Antzoulatos. Antzoula-tos paid Jackson $500 a week in order to give Jackson the appearance of an employee, even though Jackson did not work at Antzoulatos’ dealership in any traditional sense of the term. Indeed, Jackson apparently repaid his “salary” to Antzoulatos under the table. Jackson did insist on retaining 50 percent of the profits from certain customers he was bringing into the car lot. Jackson also ensured that his personal cars were titled in the name of D & S. In addition to using the Mercedes referred to above, Jackson bought with a D & S buyer’s card a 1984 Rolls Royce Silver Spur valued at $57,900 at a Chicago Automobile Auction, forging Antzoulatos’ signature on a purchase agreement. Jackson paid for the Rolls Royce with seven different cashier’s checks purchased at different banks in order to avoid having any one bank generate a Currency Transaction Report. The Rolls Royce was also titled in the name of D & S, and like the Mercedes was used by Jackson as his personal car. Jackson in similar fashion also purchased a Chevrolet Blazer at an automobile auction, made sure it was placed in the name of D & S, and used it as his personal car.
The Pre-Sentence Report indicates that Farrow, Verser, Barker and Jackson all told Antzoulatos that they were drug dealers and that they needed to mistitle their cars in order to conceal the profits from their drug dealings. Antzoulatos denies this, admitting only that he had heard hearsay and rumors from other sources that these individuals were involved in drugs. Antzoulatos also vehemently denied allegations in the Report that he was personally involved in drug dealing. Antzoulatos did not deny any other facts outlined in the Report.
On the day before his trial was scheduled to begin, after his co-defendant Jim indicated that she would testify-against him, Antzoulatos decided to enter a plea agreement. The plea agreement states that “[t]he defendant acknowledges, understands and agrees * * * that defendant is, in fact, guilty of the offense [described in Count one of the indictment].” R. 52 at 7. Antzoulatos therefore agreed that he engaged in financial transactions knowing that the property involved represented the proceeds of unlawful activity, and knowing that the transactions were designed to conceal the nature or source of the proceeds or to avoid a transaction reporting requirement. At the plea hearing, Antzoulatos acknowledged his role in the transactions described above, but continued to maintain that he did not know at that time that these persons were drug dealers. Antzoulatos’ attorney prompted Antzoulatos at the hearing several times to admit only that “he should have known.” There is absolutely no indication that a jury would have been allowed to convict Antzoulatos on a simple negligence standard; indeed, the government proposed a jury instruction regarding the definition of “knowingly” that included a discussion of conscious avoidance and did not include the phrase “should have known.”
At the sentencing hearing, the colloquy concerning Antzoulatos’ state of mind continued. The judge did not make an explicit finding that Antzoulatos actually, subjectively knew that the persons he dealt with were drug dealers. Judge Curran’s statements at the sentencing hearing reveal, however, that he believed that Antzoulatos either knew or at the very least deliberately turned a blind eye towards the fact of his customers’ ill-gotten gains:
—[T]he Court finds almost impossible to imagine that [Antzoulatos] could not have been aware of [Jackson, Cannon, Farrow and Barker’s activities], R. 68 at 16.
—Now if there’s a group in our society who is more inquisitive about who you are and where you work and how much money you’ve got than a car salesman, I haven’t met that person. * * * [Antzou-latos’ story] is a little like the old story of the piano player and the whore house, claiming he doesn’t know what’s going on upstairs. Id. at 25.
—It doesn’t seem to me that you can simply sit like Pontious Pilot [sic] and say I didn’t see any evil and I didn’t do any evil * * *. Id. at 37.
II.
Antzoulatos challenges the constitutionality of 18 U.S.C. Section 1956(a)(1)(B) as applied to him. This provision of the Money Laundering Act of 1986 provides that:
(a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—
(B) Knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal Law,
shall be sentenced * * *.
To summarize, then, a conviction under this part of the statute requires the government to prove the following:
(1) that the defendant took part in a financial transaction involving the proceeds of specified unlawful activity;
(2) that the defendant knew that the property involved was the proceeds of specified unlawful activity; and
(3) that the defendant knew that the transaction was designed, in whole or in part, either to (a) conceal or disguise the proceeds, or (b) avoid a transaction reporting requirement.
Antzoulatos contends that when applied to a merchant like himself, the Money Laundering Act violates his substantive due process right to engage in a lawful occupation. Antzoulatos also contends that the Act as applied to him is void for vagueness.
We are unable to locate any reported case that has discussed the constitutionality of Section 1956(a)(1)(B) in relation to a money laundering financial transaction as applied to a seller who is not charged with the underlying criminal activity. The majority of reported eases involve a defendant charged with both drug dealing and money laundering — i.e., they involve drug dealers laundering their drug money. In these cases, the drug dealer is the “purchaser” in the money laundering financial transaction who uses his ill-gotten proceeds to buy various goods or services, or who otherwise tries to hide his proceeds. Nothing in the language of Section 1956(a)(1)(B), however, distinguishes between persons directly involved in the unlawful activity and those involved only in laundering the proceeds of the unlawful activity.
Throughout his constitutional arguments, Antzoulatos intimates that he is only guilty of negligence, that he “should have known” that the customers listed in the indictment were drug dealers. Significantly, however, Antzoulatos makes no claim on appeal that his guilty plea was involuntarily made under the belief that he could have been convicted under a simple negligence standard. He did not deny his involvement in any of the transactions outlined in the indictment and in the Pre-Sentence Report, but only denied any knowledge he was dealing with drug dealers. Antzoulatos declined the opportunity to go to trial and make the government prove that he knew the monies he received were proceeds from drug deals and also prove that he knew the purpose of the transactions was to disguise the nature or source of these funds. We agree with the trial judge that any lack of actual knowledge on Antzoulatos’ part amounted at a minimum to wilful blindness or conscious avoidance.
It is well settled that wilful blindness or conscious avoidance is the legal equivalent to knowledge. In the seminal case of United States v. Jewell, 532 F.2d 697 (9th Cir.1976), certiorari denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 the court upheld a jury instruction that a defendant “knowingly” possessed marijuana even if he was not actually aware it was in his car if “his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.” Id. at 700. This Court and other courts of appeals have consistently upheld the use of so-called ostrich instructions based on conscious avoidance when supported by the evidence. See United States v. Ramsey, 785 F.2d 184, 189-190 (7th Cir.1986) (collecting cases), certiorari denied, 476 U.S. 1186, 106 S.Ct. 2924, 91 L.Ed.2d 552; cf. United States v. Bader, 956 F.2d 708, 710 (7th Cir.1992) (construing the term knowingly in the Sentencing Guidelines to include more than “should have known” but noting the possibility of conscious avoidance).
We therefore examine the constitutionality of Section 1956(a)(1)(B) as applied to a merchant who actually knew that he was dealing with drug dealers and their money, or deliberately turned a blind eye regarding this fact. It should be stressed that we do not consider the constitutionality of a statute that imposes criminal penalties upon a merchant for selling goods to persons he “should have known” were laundering tainted money, or to persons he was merely suspicious were laundering tainted money.
Antzoulatos argues that his conviction violates his right to substantive due process as guaranteed by the Fifth Amendment. He posits either a liberty or property right to sell lawfully acquired goods to persons he does not actually know are drug dealers. The Supreme Court noted in 1923 that the concept of liberty in the due process clause
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God * * *.
Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. The Supreme Court has on several occasions confirmed substantive due process rights for parents to educate their children outside of public schools (Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070), for family members to live together (Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531), and for women to choose abortions in certain circumstances (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147). Since the Lochher era, however, any substantive due process right to-contract, or to engage in a lawful occupation, has been sharply curtailed. See Moore, 431 U.S. at 501, 97 S.Ct. at 1936. As this Court has noted, “we do not consider [substantive due process] a blanket protection against unjustifiable interferences with property. That way Lochner lies.” Schroeder v. City of Chicago, 927 F.2d 957, 961 (1991).
Even if we were to accept that Antzoula-tos has a generalized liberty interest in selling lawfully acquired cars, we do not believe that the interest stretches so widely to immunize Antzoulatos’ conduct in this case. Section 1956(a)(1)(B) places but a narrow restriction on Antzoulatos’ ability to sell his merchandise. :He is only barred from selling, to persons he knows are drug dealers, and only then when the known purpose of the sale is to conceal the source, nature or ownership of the proceeds. Ant-zoulatos does not, and could not, assert that this restriction on his. right to sell his property amounts to a governmental taking. We conclude that Antzoulatos’ right to liberty under the Fifth Amendment was not violated.
Antzoulatos also argues that the Money Laundering Act is void-for-vagueness as applied to him. “The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903. The most important aspect of the doctrine is the requirement that the legislature establish minimal guidelines to govern the discretion of law enforcement officials. Id. at 358, 103 S.Ct. at 1858-59. Yet since legislatures are “condemned to the use of words, we can never expect mathematical certainty from our language.” Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222.
Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 1929, 114 L.Ed.2d 524; Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct. 1186, 1191 n. 7, 71 L.Ed.2d 362. Regulation of economic activity, such as Antzoula-tos’ ability to sell cars, simply does not implicate the First Amendment. Cf. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186 (drug paraphernalia law not vague as applied to shopkeeper); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (Robinson-Patman Act not vague as applied to businesses making sales below cost). Therefore, Antzoulatos’ vagueness arguments must be examined in light of the particular facts of his case.
We conclude that Section 1956 is not unconstitutionally vague as applied to Antzoulatos. This Court in United States v. Jackson, 935 F.2d 832 (1991), has already rejected a vagueness challenge to 18 U.S.C. Section 1956(a)(1). As we have done above, the Court in Jackson carefully examined the statute and noted that it requires the government to prove both that the defendant knew the proceeds involved in a particular transaction were of a specified unlawful activity, and that he knew the transaction was designed to conceal one of the enumerated attributes of these proceeds. Id. at 838-839.
These requirements of intent and knowledge “do[ ] much to destroy any force in the argument that application of the [statute] would be so unfair that it must be held invalid,” Boyce Motor Lines v. United States, 342 U.S. 337, 342 [72 S.Ct. 329, 332, 96 L.Ed. 367] * * *, “especially with regard to the adequacy of notice to the complainant that his conduct is proscribed.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 [102 S.Ct. 1186, 1193, 71 L.Ed.2d 362] * * *.
Id. at 839. The Court also noted that the definitions included at 18 U.S.C. Sections 1956(c)(l)-(7) mitigate any possible vagueness of the terms used in the statute and show that Congress has adequately provided guidelines to law enforcement officials. Id. .
Antzoulatos correctly points out that the defendant in Jackson was convicted on separate counts of distributing drugs and laundering his own drug money by depositing it into a church bank account and using it to purchase various personal items. We agree that the vagueness question is closer here, where the statute is applied to a car dealer not directly involved in drug dealing. A drug dealer, if convicted on both a narcotics count and a money laundering count, by hypothesis knows that he is using tainted proceeds in the transaction, and also knows that his purpose is to conceal the nature or source of the proceeds. The merchant, on the other hand, has not been involved with the proceeds prior to the transaction.
The question therefore arises: how does the merchant “know” that a transaction is being consummated with tainted money and further know that the purpose is to conceal something about that money? It presumably would be sufficient when the merchant personally observes the unlawful activity and sees that the proceeds are being used to buy goods from him. It also is presumably sufficient if the buyer says directly to the merchant: “this money is tainted.” More problematic is asking the merchant to rely on the word of third persons, who may or may not be believable. Also problematic is permitting the merchant to rely on the appearance of a buyer, or on the presence of unexplained wealth.
We are confident that courts are capable of ferreting out prosecutions that present insufficient evidence of knowledge on the part of the merchant. The case of United States v. Campbell, 777 F.Supp. 1259 (W.D.N.C.1991), is a good example of a careful application of Section 1956(a)(1)(B) to a merchant. The defendant in Campbell was a real estate agent who facilitated the sale of a house to a drug dealer. The district court overturned the agent’s money-laundering conviction. Evidence that the buyer paid cash, the buyer was a “known” drug dealer in a town thirty miles away, the buyer dressed flashily, and the defendant’s associate told her that there “may have been drug money” involved was held insufficient to support a conclusion that the defendant knew that the buyer was paying for real estate with drug proceeds. Id. at 1268.
Focusing on the particular facts of this case, we conclude that Section 1956(a)(1)(B) is not unconstitutionally vague as applied. Unlike the defendant in Campbell, Antzou-latos is closely linked to the drug dealers with whom he dealt. Antzoulatos allowed one drug dealer access to his company’s cheeks to purchase cars at area auto auctions. He allowed this dealer on several occasions to pay him back in cash increments designed to avoid currency transaction requirements. Several of the customers were prepared to testify at trial that they told Antzoulatos directly that they were drug dealers and needed to conceal their drug profits. He mistitled scores of cars for his drug-dealing customers over a period of years. Antzoulatos decided to plead guilty and does not contend that this plea was involuntary or that a factual basis for his plea was not established. Given these circumstances, we believe that Ant-zoulatos was adequately put on notice that his conduct would be considered unlawful.
III.
Antzoulatos argues in the alternative that the trial court erred in denying him credit for acceptance of responsibility under U.S.S.G. § 3El.l(a). Under this section, a defendant is entitled to a 2-level offense level reduction “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” The district judge’s determination in this regard is a finding of fact that we may overturn only if it is clearly erroneous. United States v. Franklin, 902 F.2d 501, 505 (7th Cir.1990), certiorari denied, — U.S. — , 111 S.Ct. 274, 112 L.Ed.2d 229 Antzoulatos is not entitled to a reduction merely because he entered a guilty plea. U.S.S.G. § 3E1.1(c).
Because we are not left with the definite and firm conviction that a mistake has been committed, see Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 we affirm the district judge’s decision to deny Ant-zoulatos’ credit for acceptance of responsibility. The district court thoroughly examined the various factors noted in Application Note 1 to Section 3E1.1, including the fact that Antzoulatos did not voluntarily withdraw from criminal conduct, and that Antzoulatos’ plea was made on the day of trial. Most significantly, the Court considered Antzoulatos’ written letter to the Court to be unbelievable:
But repeatedly, and more importantly as I read through here, he excuses himself. * * * [H]e says he spent most of his time purchasing his own vehicles and not paying any attention to what Farrow and Jackson were doing, even though they purchased a Rolls Royce at that auction. * * * [H]e has a relationship with an individual which * * * gives him 50 percent of the profits of certain customers, at the same time claiming that he didn’t know what type of business he was engaged in. * * * I have been asked to accept a lot of unusual stories, but this one is more than I can swallow.
Tr. at 24-26. These findings are not clear error.
For the foregoing reasons, we Affirm the sentence of Dennis G. Antzoulatos.
. Counts two through four, charging Antzoula-tos with aiding and abetting various substantive violations of 18 U.S.C. § 1956(a)(1)(B), were dismissed pursuant to the plea agreement entered into by Antzoulatos.
. The statute also defines some of the terms used above:
(1) The term "knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity” means that the person knew the property involved represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony * * *.
(2) The term "conducts" includes initiating, concluding, or participating in initiating, or concluding a transaction.
(3) The term "transaction” includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition * * *.
(4) The term "financial transaction” means (A) a transaction (i) involving the movement of funds by wire or other means or (ii) involving one or more monetary instruments, which in any way or degree affects interstate or foreign commerce * * *.
(5) The term “monetary instruments” means (i) coin or currency * * * personal checks, bank checks, and money orders * * *. 18 U.S.C. § 1956(c)(l)-(5). Additionally, the term "specified unlawful activity" is defined in Section 1956(c)(7) and encompasses a lengthy list of crimes, including, by reference to Section 1961(1) of Chapter 18, any offense relating to the "felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs.”
. The statute’s legislative history confirms that more than mere suspicion is required on the merchant's part. An earlier version of the provision at issue contained "reason to know” and "reckless disregard” standards; this language was replaced in response to concerns raised by several witnesses during hearings on the bill. S.Rep. No. 433, 99th Cong., 2d Sess. 6-8 (1986). The report continues,
The "knowing” scienter requirements are intended to be construed, like existing "knowing" scienter requirements, to include instances of "willful blindness.” * * * [A]n automobile dealer who sells a car at market rates to a person whom he merely suspects of involvement with crime, cannot be convicted of this offense in the absence of a showing that he knew something more about the transaction or the circumstances surrounding it.
Id. at 9-10.
The Second Circuit has noted' that the plain meaning of the statute requires a "knowing” mental state rather than mere recklessness or negligence. United States v. Lora, 895 F.2d 878, 880 n. 2 (2d Cir.1990).
. The mistitling of cars is relevant in this case only because of the number of incidents involved and only then when viewed in conjunction with the other facts of this case. There is certainly nothing illegal about buying a car and placing that car in someone else’s name; parents do it frequently for their children. The Tenth Circuit in United States v. Sanders, 929 F.2d 1466, 1472-1473 (10th Cir.1991), certiorari denied, — U.S. —, 112 S.Ct. 143, 116 L.Ed.2d 109, overturned a money laundering conviction that was based on the purchase of two cars using drug proceeds, one of which was titled in the name of the drug dealer’s daughter. These two transactions were held insufficient to show a purpose of concealment, especially when the daughter was physically present at the purchase of the car placed in her name. Antzoulatos’ case is different because of the number of transactions he engaged in involving mistitling, and because many of the cars were titled in fictional names or the name of his company. Cf. United States v. Gurary, 860 F.2d 521, 526-527 (2d Cir.1988) (upholding conscious avoidance instruction for defendant charged with aiding preparation of fraudulent tax returns where defendant was involved in hundreds of transactions, but implying a different result if only a single transaction had been involved), certiorari denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403.
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_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.
GEORATOR CORPORATION, Appellee, v. UNITED STATES of America, Appellant.
No. 73-1187.
United States Court of Appeals, Fourth Circuit
Argued June 4, 1973.
Decided Oct. 2, 1973.
Ann Belanger, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Crampton, Asst. U. S. Atty. Gen., Meyer Rothwacks and Ernest J. Brown, Attys., Tax Div., U. S. Dept, of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellant.
Mark P. Friedlander, Arlington, Va. (Harry P. Friedlander, Friedlander, Friedlander & Brooks, Arlington, Va., on brief), for appellee.
Before WINTER, BUTZNER and FIELD, Circuit Judges.
FIELD, Circuit Judge:
This case presents the question whether for federal income tax purposes fees incurred while resisting a petition to cancel registration of a trademark may be deducted annually as an ordinary business expense or must be treated as a capital expenditure.
In 1964 Wincharger Corporation, a subsidiary of Zenith Corporation, filed a petition in the Patent Office to cancel Georator Corporation’s (Georator) registration of the trademark “NO-BRUSH” on the ground that the trademark had become the common descriptive name for certain types of electric generators and motors. After four years of litigation the Patent Office dismissed the proceeding because of the petitioner’s failure to present any substantial evidence to refute the presumptions afforded the trademark by virtue of its registration.
In the course of defending its trademark registration, Georator incurred legal fees in excess of $18,000. These expenses were deducted annually as ordinary business expenses under Section 162(a) of the Internal Revenue Code, 26 U.S.C. § 162(a). Upon audit the Internal Revenue Service held the legal fees to be capital expenditures and determined an income tax deficiency for the years in question in the amount of $9,967.15. Georator paid the deficiency, petitioned for a refund and upon denial thereof brought suit against the government in the district court to recover the amount paid on the deficiency assessment. The district court agreed with Georator’s contention that the legal fees were ordinary business expenses fully deductible in the years incurred and ordered that the deficiency, with interest, be refunded. From that judgment the government has appealed.
Our analysis of this question begins with the principle of taxation reflected in Section 162(a) of the Internal Revenue Code that an expenditure securing benefits which are realized and exhausted in the same tax period is fully deductible in that tax period. Conversely, an expenditure securing benefits beyond the taxable year must be capitalized. Darlington-Hartsville Coca-Cola Bot. Co. v. United States, 393 F.2d 494 (4 Cir. 1968); Richmond Television Corporation v. United States, 345 F.2d 901 (4 Cir. 1965).
It is clear that an expenditure need not be for a capital asset, as described in Section 1221 of the Code, 26 U.S.C. § 1221, in order to be classified as a capital expenditure. Expenditures for equipment used in a trade or business and qualifying for the depreciation allowances of Section 167 of the Code, 26 U.S.C. § 167, while specifically excluded from the provisions of Section 1221, nonetheless constitute capital expenditures. Nor is it necessary that an expenditure increase the value of an asset in order to be classified as a capital expenditure, as the district court apparently assumed. Costs of defending title to property, although adding nothing to the value of the property, have been held to be capital expenditures. Garrett v. Crenshaw, 196 F.2d 185 (4 Cir. 1952); Bowers v. Lumpkin, 140 F.2d 927 (4 Cir. 1944). It is also clear that Section 263 of the Code, 26 U.S.C. § 263, which disallows deductions for expenditures which increase the value of any property, does not provide a complete or exhaustive list of nondeductible expenditures. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345, 358, 91 S.Ct. 1893, 29 L.Ed.2d 519 (1971).
Registration of a trademark in the Patent Office, while not enlarging the common law rights of a trademark, does confer very real benefits upon the holder of such trademark. Those benefits include: (1) constructive notice of the registrant’s claim of ownership of the trademark; (2) prima facie evidence of the validity of the registration, of the registrant’s ownership of the mark, and of his exclusive right to use the mark in commerce as specified in the certificate; (3) the possibility that, after five years, registration will become incontestible and constitute conclusive evidence of the registrant’s right to use the mark; (4) the right to request customs officials to bar the importation of goods bearing infringing trademarks; (5). the right to institute trademark actions in federal courts without regard to diversity of citizenship or the amount in controversy; and (6) treble damage actions against infringing trademarks and other remedies. 15 U.S.C. § 1051 et seq. Registration is effective initially for twenty years, but the possibility of renewal at the end of that time makes a determination of the effective life span impossible. Since the benefits of trademark registration are of indeterminate duration and likely to extend over several tax periods, the costs of registration have been held to be capital expenditures. Duesenberg, Inc. of Delaware, 31 B.T.A. 922 (1934), aff'd on other grounds, 84 F.2d 921 (7 Cir. 1936); see also our discussion of Section 177 of the Internal Revenue Code, 26 U.S.C. § 177, infra.
In our view, legal costs incurred resisting cancellation of a trademark registration must be treated in the same manner as the costs of the original registration. Plainly, successful opposition to a cancellation proceeding secures the benefits of registration as much as does the original registration of the trademark. The fact that dismissal of a cancellation petition is not res judicata does not alter the fact that the benefits of registration have been protected and preserved at least temporarily. If anything, successful opposition to a vigorous challenge will ordinarily deter all but the frivolous from future attempts at cancellation and, as appellee has noted, it is the realities rather than the formalities which must be given weight in tax litigation. Of significance here is the fact that the benefits of successful opposition to the cancellation petition were likely to extend, and in fact did extend, beyond the tax period in which they were secured.
However, our decision does not depend entirely upon this analysis. Under Section 177 of the Code, 26 U.S.C. § 177, the owner of a trademark may elect to deduct over a period of not less than sixty months “any trademark or trade name expenditure.” The Senate Report accompanying Section 177 stated that
“Under present law, expenditures paid or incurred by smaller companies in connection with trademarks and trade names, such as legal fees, are not deductible but must be capitalized.”
In Danskin, Inc. v. Commissioner, 331 F.2d 360 (2 Cir. 1964), in which the legal costs of an infringement action were held to be capital expenditures, the court noted the Congressional desire to effect a measure of equity between large corporations which could deduct the salaries of staff attorneys and smaller corporations which were required to capitalize such legal expenses, but also observed that “if the expenses of trademark infringement litigation were intended by Congress to be classified as ordinary business expenses under section 162(a) of the Code, it would [hardly] have been necessary to provide in section 177 a special rule covering them, a rule less advantageous to a taxpayer than section 162(a)” Id. at 362. Thus, unless the legal expenses of trademark cancellation proceedings are excluded from Section 177, a strong inference may be drawn that such expenses are capital in nature.
“Trademark or trade name expenditures” are defined in Section 177(b) of the Code as “any expenditure which: (1) is directly connected with the acquisition, protection, expansion, registration (Federal, State or foreign), or defense of a trademark, trade name, (2) is chargeable to capital account; and (3) is not part of the consideration [or purchase price] paid for a trademark, trade name or business.” The district court held this section inapplicable to this case because “the expenditures here claimed were not connected with the acquisition of the registration or the validity of the trademark — they were incurred in defending a cancellation proceeding.” We find this to be an incorrect reading of Section 177. That section does not refer to expenses incurred in connection with the “acquisition of registration; ” rather, it refers to expenses incurred in connection with the “acquisition * * * of a trademark,” or in connection with the “registration * * * of a trademark.” No reason appears in the language of the statute to distinguish between costs of the original registration and costs of a cancellation proceeding. Assuredly, costs incurred resisting a cancellation petition are “directly connected with the * * * registration * * * of a trademark.”
Concededly, some ambiguity as to the scope of Section 177 has been occasioned by the Treasury Regulations interpreting that section. 26 CFR 1.177-l(b) (1) provides that
“Generally, section 177 will apply to expenditures such as legal fees and other costs in connection with the acquisition of a certificate of registration of a trademark from the United States or other government, * * * litigation expenses connected with infringement proceedings, and costs in connection with the preparation and filing of an application for renewal of registration and continued use of a trademark.”
Arguably, the failure to specifically include legal fees incurred in cancellation proceedings may be said to imply that such fees are not covered by Section 177 since, as appellee urges, they are not “chargeable to capital account.” As noted earlier, however, the express language of the statute does not require such a narrow reading. Moreover, Revenue Ruling 55-158 suggests the opposite construction. In order to avoid automatic cancellation of a trademark registration after six years, 15 U.S.C. § 1058 requires a registrant to file by the end of the fifth year an affidavit of use with the Patent Office. Revenue Ruling 55-158 holds that amounts spent in preparation and filing of an affidavit of use may not be deducted under 162(a) of the Code, but must be capitalized. Appellee has not suggested nor do we perceive any basis in logic or policy for treating legal fees incurred resisting a petition to cancel a trademark registration in a manner different from legal fees incurred avoiding the automatic cancellation under 15 U.S.C. § 1058. In both situations the benefits secured extend beyond the tax period during which the fees are paid out. Thus, regardless of the type of trademark expenses which may fall outside the ambit of Section 177(b) (2), it is clear that the legal costs of cancellation proceedings are not among them.
We conclude that the Internal Revenue Service properly classified the fees incident to the cancellation proceeding as a capital expenditure and the deficiency assessed on that basis was correct. Accordingly, the judgment of the district court is reversed and the case remanded with instructions to enter judgment in favor of the plaintiff/appellee herein in the sum of $1,111.60 in taxes and $116.-98 as assessed interest, or a total of $1,-228.58, under the stipulations filed in the court below, in lieu of the judgment entered below for $11,278.
Reversed.
. S.Rep.No.1941, 84th Cong., 2d Sess., p. 8, 1956 U.S.Code Cong. & Admin.News, p. 2918 (1956-2 Cum.Bull. 1227, 1232).
. 1955-1 Cum.Bull. 319.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
FORMULA ONE MOTORS, LTD., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 21, Docket 85-6086.
United States Court of Appeals, Second Circuit.
Argued Sept. 19, 1985.
Decided Nov. 21, 1985.
Victor M. Metsch, New York City (Stephen H. Reese, Hartman & Craven, New York City, on brief), for plaintiff-appellant.
Amy Rothstein, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Steven E. Obús,. Asst. U.S. Atty., New York City, on brief), for defendant-appellee.
Before LUMBARD, OAKES and NEWMAN, Circuit Judges.
JON O. NEWMAN, Circuit Judge.
Formula One Motors, Ltd. (“Formula One”) appeals from a judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) dismissing for lack of subject matter jurisdiction its complaint seeking damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), 2671-2680 (1982). Formula One alleged that agents of the Drug Enforcement Administration (“DEA”), in the course of executing a warrant to seize and search an automobile that Formula One was importing into the country, had destroyed the automobile. The District Court ruled that the claim fell within the exception to the FTCA for claims “arising in respect of ... the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.” Id. § 2680(c). We affirm.
Formula One purchased a 1971 Mercedes Benz convertible in Italy in October 1983 and arranged for shipment of the automobile to the United States. In January 1984, DEA agents, armed with a search warrant, seized the automobile from a shipping container at Crestwood Trucking, Inc. in Keney, New Jersey, and, while searching for narcotics, allegedly disassembled the car so completely and damaged so many parts as to render the vehicle effectively destroyed. After the DEA rejected appellant’s claim for damages to the automobile, appellant filed a claim in the district court under the FTCA, seeking compensation for the $28,000 it paid for the automobile, $3,819.66 in shipping charges and customs duties, and $66,250, the alleged approximate resale value of the automobile. On cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), the district court granted the Government’s motion and dismissed the complaint for lack of subject matter jurisdiction.
Discussion
The FTCA gives district courts exclusive jurisdiction of civil actions seeking money damages from the United States “for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). The FTCA also provides, however, a list of exceptions in which section 1346(b) does not apply; if a situation falls within one of the statutory exceptions, the district courts lack subject matter jurisdiction over the claim. See Birnbaum v. United States, 588 F.2d 319, 322 (2d Cir.1978).
Among the exceptions in the FTCA is section 2680(c), which exempts the United States from liability for
[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.
The Government contends that the claim for damage to appellant’s automobile is a claim “arising in respect of ... the detention of any goods ... by ... any other law-enforcement officer.” In the Government’s view, section 2680(c) applies to damage incurred in the course of any search and seizure undertaken by any law enforcement officer. The terms of the statute, construed in light of the doctrine of ejusdem generis, might suggest a more narrow reading. First, it can be argued that the “detention” to which section 2680(c) applies is not every physical seizure preliminary to a search but only a possession effected in the course of assessing or collecting any tax or customs duty. Second, it might also be thought that the specification of “any officer of customs or excise” followed by “any other law-enforcement officer” implies that other law enforcement officers are covered only when their actions are in aid of customs or excise functions of the Government. Nevertheless, several circuits have ruled, with scant discussion, that section 2680(c) applies to detentions beyond the context of customs duties and taxes, e.g., United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir.) (Department of Agriculture), cert. denied sub nom. Jarboe-Lackey Feedlots, Inc. v. United States, — U.S. —, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984); United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir.1979) (Federal Aviation Administration); United States v. 1500 Cases, More or Less, 249 F.2d 382, 384 (7th Cir.1957) (Food and Drug Administration), though the contrary view has been expressed, see A-Mark, Inc. v. United States Secret Service, 593 F.2d 849, 850 (9th Cir.1978) (Tang, J., concurring). The Supreme Court has noted the ambiguity as to the reach of the phrase “any other law-enforcement officer,” but has not determined whether the section 2680(c) exemption is limited to the customs or excise context. See Kosak v. United States, 465 U.S. 848, 852 n. 6, 104 S.Ct. 1519, 1522-23 n. 6, 79 L.Ed.2d 860 (1984).
In the instant case we are satisfied that the detention of the automobile and its search by DEA agents fell within the scope of section 2680(c), without determining whether the exemption would apply to searches by law enforcement officers with no relationship to the customs or excise functions. The DEA agents seized and searched an automobile that had been shipped from abroad and was still in its shipping container. The agents were searching for smuggled narcotics, though, as it happened, no drugs were found. The seizure of an automobile still in transit from overseas and a search of that automobile for narcotics are sufficiently akin to the functions carried out by Customs officials to place the agents’ conduct within the scope of section 2680(c).
Appellant does not dispute this view of the statute’s coverage, but nonetheless contends it is inapplicable because the results of the agents’ conduct exceeded the normal consequences of a “detention” and constituted a “destruction” of the car. The purported distinction is unavailing. In Kosak v. United States, supra, the Supreme Court declined to limit section 2680(c) to claims based on the fact of detention, such as diminution in market value, and construed it to cover any claim “arising out of” a detention, including a claim stemming from negligent storage or handling of the detained property. 104 S.Ct. at 1524. Nothing in Kosak suggests that the Supreme Court, reading the exemption broadly in a case involving damaged antiques, intended to precipitate a distinction between goods damaged and goods destroyed. Indeed, the contention advanced and rejected in Kosak was that section 2680(c) should not apply to “ ‘the negligent ... destruction of property while it is in the possession of the customs service.’ ” Id. at 1523 (emphasis added).
Appellant is mistaken in contending that footnote 3 of the Kosak opinion evidences the Court’s refusal to decide the “destruction” issue. In that footnote, the Court declined to consider a claim of destruction of property other than the detained property. A valuable item had been destroyed by Customs agents in the course of searching Kosak’s home. The claim concerning destruction of this property was left unresolved, not for any doubt as to whether a “destruction” of detained goods was covered by section 2680(c), but because the claim had not been presented to the Court of Appeals. See 104 S.Ct. at 1522 n. 3.
At argument, appellant urged that the agents’ conduct should render the United States liable because they dismantled the car and damaged its parts to an extent far beyond what was reasonably required to determine whether the vehicle contained narcotics. Appellant suggests that the agents were motivated by malice. Though some might think that a sufficiently minute examination of the car could have been made without leaving it unusable, we see no basis for reading into section 2680(c) a limitation concerning the reasonableness of the agents’ conduct in searching the detained property. The exemption serves to insulate the United States from litigation over precisely such issues. Whether the United States ought to be liable for an excessively damaging means of carrying out a search of detained property is a matter for consideration by Congress. Cf. Pub.L. No. 93-253, § 2, 88 Stat. 50 (1974) (amending 18 U.S.C. § 2680(h) to render United States liable for law enforcement officers’ misconduct with respect to persons). Moreover, we decide only that the officers’ alleged conduct does not subject the United States to liability; we have no occasion to consider the liability of the officers. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The judgment of the District Court is affirmed.
. The movie, "The French Connection," showed law enforcement officers disassembling an expensive automobile in a thorough search for narcotics and reassembling it without any apparent trace of damage. Of course, the film may have understated the thoroughness of an agent's search, or overstated his reconstruction skills, or failed to reckon with new smuggling techniques that secrete drugs from discovery except upon a complete and damaging dismantling of an automobile.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
DELTA AIR LINES, INC., Allegheny Airlines, Inc., National Airlines, Inc., Piedmont Aviation, Inc., Braniff Airways, Inc., North Central Airlines, Inc., Southern Airways, Inc., Eastern Air Lines, Inc., Northwest Airlines, Inc., Trans World Airlines, Inc., Ozark Air Lines, Inc., American Airlines, Inc., Pan American World Airways, Inc., and United Air Lines, Inc., Plaintiffs-Appellees-CrossAppellants, v. Werner H. KRAMARSKY, Individually and in his capacity as Commissioner of the New York State Division of Human Rights; Ann Thacher Anderson, Individually and in her capacity as General Counsel of the New York State Division of Human Rights; The New York State Division of Human Rights, an agency of the Executive Department of the State of New York; Arthur Cooperman, Individually and in his capacity as Chairman of the New York State Workmen’s Compensation Board; and the New York State Workmen’s Compensation Board, Defendants-Appellants-Cross-Appellees.
No. 18, Docket 80-7179.
United States Court of Appeals, Second Circuit.
Originally Argued Sept. 25, 1980.
Decided May 11, 1981.
Petition for Rehearing filed June 9, 1981.
Decided Nov. 24, 1981.
J. Stanley Hawkins, Dean Booth, Keith M. Wiener, Kilpatrick & Cody, Atlanta, Ga., for plaintiffs-appellees-cross-appellants Delta Air Lines, Inc., et al.
Ann Thacher Anderson, Gen. Counsel, • State Division of Human Rights, New York City, for defendants-appellants Werner H.. Kramarsky, et al.
Myrna M. Martinez, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Shirley Adelson Siegel, Solicitor Gen., Peter Bienstock, Asst. Atty. Gen., Daniel Berger, Deputy Asst. Atty. Gen., New York City, on the brief), for defendants-cross-appellees Arthur Cooperman, et al.
Constance L. Dupre, Acting Gen. Counsel, Philip B. Sklover, Acting Associate Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, Carol Cresswell Moschandreas, Washington, D. C., for Equal Employment Opportunity Commission as amicus curiae.
Before MOORE and KEARSE, Circuit Judgés, and TENNEY, District Judge.
Honorable Charles H. Tenney, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.
KEARSE, Circuit Judge:
Our original opinion on this appeal, reported at 650 F.2d 1287, held, inter alia, that § 514(a) of the Employee Retirement Income Security Act of 1974 (“ERI-SA”), 29 U.S.C. § 1144(a) (1976), did not preempt New York’s Human Rights Law (“HRL”), N.Y.Exec.Law § 296 (McKinney 1972 & Supp.1980-1981), insofar as the HRL required employers who maintained employee disability benefit plans to provide benefits for disability due to pregnancy during the period from December 30, 1976, to April 29, 1979. We granted the rehearing petition of plaintiffs-appellees Delta Air Lines, Inc., et al. in order to reconsider that holding in light of the Supreme Court’s subsequent decision in Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981). At issue here is whether, and to what extent, Aiessi affects the precedential weight to be accorded the Supreme Court’s earlier dismissal, for want of a substantial federal question, of an appeal in Minnesota Mining & Manufacturing Co. v. Minnesota, 444 U.S. 1041, 100 S.Ct. 725, 62 L.Ed.2d 726 (1980), dismissing appeal from 289 N.W.2d 396 (Minn.1979) (hereinafter “Minnesota ”), the decision that compelled our conclusion that ERISA did not preempt the HRL. Believing that Aiessi has effectively overruled Minnesota, we now vacate so much of our prior opinion as held that 514(a) of ERISA did not preempt § 296 of the HRL, and we affirm the judgment of the district court insofar as it enjoined enforcement of the HRL.
The Summary Dismissal in Minnesota
In Minnesota, the Minnesota Supréme Court had held that a Minnesota statute that required employers to treat pregnancy the same as other disabling conditions for purposes of disability benefit plans, was not preempted by ERISA. The state court’s decision was appealed to the United States Supreme Court pursuant to 28 U.S.C. § 1257(2) (1976), requiring the Court to rule on the merits of the state court’s judgment. The Supreme Court, declining to receive briefs or hear oral argument, dismissed the appeal for want of a substantial federal question, thus leaving the state court judgment intact. As discussed in our prior opinion, familiarity with which is assumed, Supreme Court dismissals for want of a substantial federal question “are judgments on the merits ... with respect to the ‘precise issues presented [to the Supreme Court] and necessarily decided’ by it in disposing of the appeal.” 650 F.2d at 1295 (quoting Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam)). In the absence of any further enlightenment by the Court, such judgments must be followed by the lower courts, e.g., Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). Thus we were compelled to view the Supreme Court as having ruled in Minnesota that ERISA did not preempt the Minnesota statute. Since the New York HRL is virtually identical to the Minnesota statute, we concluded that under the rule of Minnesota ERISA did not preempt HRL § 296.
Nevertheless, summary decisions of the Supreme Court are binding on the lower courts only “until such time as the Court informs [them] that [they] are not.” Hicks v. Miranda, supra, 422 U.S. at 345, 95 S.Ct. at 2289 (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.), cert. denied, 414 U.S. 1096, 94 S.Ct. 732, 38 L.Ed.2d 555 (1973), application denied, 500 F.2d 1206 (2d Cir. 1974)). Such information obviously may come in the form of an express overruling of a prior summary decision, but it need not be so direct. As the Court has recognized, even absent an explicit statement that the decision has been overruled, departure from a summary precedent may be warranted on the basis of “doctrinal developments” in the Court’s subsequent decisions. Hicks v. Miranda, supra, 422 U.S. at 344-45, 95 S.Ct. at 2289-90 (quoting Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n.3 (2d Cir. 1967)). See also Heaney v. Allen, 425 F.2d 869, 870-71 (2d Cir. 1970). Since in Alessi the Supreme Court did not state in terms that it was overruling Minnesota, nor, indeed, even mention Minnesota, the questions here are whether Alessi is a “doctrinal development” that invalidates Minnesota, and, if it is, whether it compels us to hold that the HRL was preempted. We answer both questions in the affirmative.
Alessi as a Doctrinal Development
We regard the teaching of Alessi as incompatible with Minnesota’s ruling that ERISA does not preempt state statutes that regulate the nature of the benefits an employer must provide in his employee benefit plans. Alessi involved a different type of regulation, but the starting point for its analysis is that which must be used here, and the course and final resting place of its analysis is no less instructive here.
The employee benefit plans challenged by retired employees in Alessi integrated pension benefits with workers’ compensation benefits; they provided that an employee’s retirement benefits would be reduced by an amount equal to any workers’ compensation awards for which the retiree was eligible. The statute at issue was the New Jersey workers’ compensation law, which forbade such reductions with respect to retirement pension benefits but allowed them with respect to disability pension benefits. After district court rulings that the New Jersey statute invalidated the plans and was not superseded by ERISA, the Court of Appeals for the Third Circuit reversed, concluding that, since the purpose of the state statute was to impose an additional statutory requirement for pension plans, the statute was preempted by ERISA.
The Supreme Court, after plenary consideration, agreed with the appellate court that ERISA preempted the New Jersey statute. Recognizing that the preemption of state law by federal law is not lightly to be inferred, 101 S.Ct. at 1905, the Court found that in ERISA § 514(a) Congress had expressly stated its intention to preempt the field of pension plan regulation:
In this instance, we are assisted by an explicit congressional statement about the pre-emptive effect of its action. The same chapter of ERISA that defines the scope of federal protection of employee pension benefits provides that
“the provisions of this Subchapter . .. shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under 1003(b) of this title.” [§ 514(a)].
This provision demonstrates that Congress intended to depart from its previous legislation that “envisioned the exercise of state regulation over pension funds,” Malone v. White Motor Corp., 435 U.S. 497, 512, 514, 98 S.Ct. 1185, 1194, 1195, 55 L.Ed.2d 443 (1978) (plurality opinion), and meant to establish pension plan regulation as exclusively a federal concern.
Id. at 1906 (footnote omitted).
To determine the applicability of § 514(a) the Court had to decide whether the New Jersey statute, which did not purport to regulate pension plans qua pension plans, was a law that “relate[d] to any employee benefit plan.” Having ruled in an earlier section of its opinion that ERISA, despite the silence of its terms and legislative history on the subject, permitted an employer to integrate pension benefits with workers’ compensation benefits, id. at 1900-05, the Court found that the New Jersey statute did “relate” to such plans, even if its regulation was indirect rather than direct:
Whatever the purpose or purposes of the New Jersey statute, we conclude that it “relate[s] to pension plans” governed by ERISA because it eliminates one method for calculating pension benefits — integration — that is permitted by federal law... .
It is of no moment that New Jersey intrudes indirectly, through a workers’ compensation law rather than directly, through a statute called “pension regulation.” ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern. For the purposes of the pre-emption provision, ERI-SA defines the term State to include: “a State, or any political subdivision thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly the terms and conditions of employee benefit plans covered by this title.” 29 U.S.C. 1144(c)(2) (emphasis added). ERISA’s authors clearly meant to preclude the States from avoiding through form the substance of the preemption provision.
Id. at 1907 (emphasis in original).
In addition, the Court rejected an argument that ERISA’s preemption provision should not be applicable to the New Jersey statute in light of provisions exempting certain types of benefit plans from ERISA’s coverage. Specifically, the plaintiff retirees argued that if the benefit plans in question had been maintained solely to comply with New Jersey’s workers' compensation law, the plans would be exempt from ERISA’s scope, §§ 4(b)(3), 514(a), 29 U.S.C. §§ 1003(b)(3), 1144(a) (1976), and that if plans maintained solely to comply with a certain law are not covered, that law should not be deemed preempted. The Court rejected this reasoning on the basis of the “plain language” of § 514(a), stating as follows:
The only relevant state laws, or portions thereof, that survive this pre-emption provision are those relating to plans that are themselves exempted from ERISA’s scope.
Id. at 1906 n.20.
The fact that Alessi dealt with pension benefit plans, rather than with disability benefit plans such as those at issue in Minnesota and the present case, is of no moment. Section 514(a) speaks in terms of “any employee benefit plan”; employee pension benefit plans and employee disability benefit plans are equally species of this genus. Thus preemption rules with regard to statutes that relate to pension benefit plans are equally applicable to statutes that relate to disability benefit plans. We summarize Alessi’s formulation of those rules as follows. ERISA § 514(a) states Congress’s intention to establish employee benefit plan regulation as exclusively a federal concern. 101 S.Ct. at 1906. The only relevant state laws that survive this preemption provision are those relating to plans that are themselves exempt from ERISA’s scope. Id. n.20. A state statute that eliminates from ERISA-covered employee benefit plans features that are permitted by federal law is preempted. Id. at 1907.
Although the Alessi Court did not purport to determine the outer limits of § 514(a)’s preemptive reach, these principles amply cover the Minnesota situation. The disability benefit plans at issue in Minnesota were covered by ERISA. Federal law permitted an employer to choose whether or not to provide pregnancy benefits in disability benefit plans. The Minnesota statute requiring an employer to provide pregnancy benefits as part of such plans “relate[dj” to ERISA-covered plans. And ERISA has preempted the regulatory field for plans within its scope. Had the principles stated in Alessi been applied to the Minnesota statute, the statute could not have been upheld. We thus conclude that Minnesota has been overruled in principle by Alessi. Although we would naturally feel more confident of this conclusion had Minnesota been mentioned in the Court’s opinion in Alessi, we regard the development of obviously applicable principles in Alessi as the sort of doctrinal development referred to in Hicks v. Miranda, supra, by which the Court instructs us that a prior summary decision is no longer controlling.
Effect of Alessi on the HRL
Our conclusion that the principles stated in Alessi are incompatible with the result in Minnesota answers the question of Alessfs effect on our original holding, on the basis of the indistinguishable statute in Minnesota, that the HRL was not preempted by ERISA. As we discussed in that earlier opinion, during the time period relevant in the present case, federal law permitted employers to provide or exclude benefits for pregnancy-related disability as they pleased or as they might agree through collective bargaining. See 650 F.2d at 1291-92. By requiring employers to provide pregnancy benefits, the HRL applied directly to matters that federal law then reserved to private choice, and it eliminated one permissible method for allocating the cost of pregnancy-related disability. Thus, under the teaching of Alessi, the HRL “relate[d] to” ERISA-governed benefit plans within the meaning of ERISA 514(a), and it was therefore preempted by that provision.
In reaching this conclusion we reject the suggestion of the Equal Employment Opportunity Commission as amicus curiae that we should find Minnesota untouched by Alessi on the basis of the “double savings clause argument.” As we noted in our original opinion, 650 F.2d at 1295 n.10, this argument focuses on ERISA § 514(d), 29 U.S.C. § 1144(d), which exempts other federal laws, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976) (“Title VII”), from supersedure by ERISA. Title VII, in turn, exempts state fair employment laws from preemption by Title VII. 42 U.S.C. § 2000e-7. The double savings clause argument urges that the net effect of these two provisions is to exempt state fair employment practice laws from preemption by ERISA. See, e.g., Westinghouse Electric Corp. v. Maryland Commission on Human Relations, 520 F.Supp. 539 (D.Md.1981). We rejected this argument in Pervel Industries, Inc. v. Connecticut Commission on Human Rights & Opportunities, 603 F.2d 214 (2d Cir. 1979), aff’g 468 F.Supp. 490 (D.Conn.1978), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980), and we adhere to that rejection here. In granting summary judgment in favor of the employer in Pervel, then-District Judge Newman gave two sound reasons for rejecting the double savings clause argument. First, during the debates in the Senate on the Age Discrimination in Employment Act (ADEA) Amendments of 1978, there was an “explicit acknowledgement by Senate architects of ER-ISA” that neither ERISA nor a double savings clause interpretation of ERISA and ADEA preserved state age discrimination laws; Judge Newman concluded that these remarks supported the argument that ERI-SA preempted the state sex discrimination laws at issue in Pervel. 468 F.Supp. at 493 n.2. Second, although Title VII saves state discrimination laws from preemption, it does not transform those laws into federal laws, and only federal laws are protected from preemption by ERISA. See id. at 493. Therefore, ERISA § 514(d) provides no basis for holding that HRL § 296 has not been preempted.
Accordingly, we vacate our prior opinion insofar as it held, on the basis of Minnesota, that the HRL was not preempted during the relevant period, and we affirm the judgment and order of the district court, 485 F.Supp. 300, to the extent that it held that the HRL was unenforceable. Our remand to the district court with respect to other issues remains unchanged.
. To the same limited extent we also granted the rehearing petitions of the employers in Burroughs Corp. v. Kramarsky, 650 F.2d 1308, and Metropolitan Life Ins. Co. v. Kramarsky, 650 F.2d 1309, which were decided with, and which relied on, our prior decision in this action. Our decisions in Burroughs v. Kramarsky, 650 F.2d 1308 and Metropolitan Life v. Kramarsky, 650 F.2d 1309, are modified today, by separate orders, in accordance with our decision in the present case.
. We also vacate, as no longer necessary to our decision concerning the enforceability of the HRL, those portions of our prior opinion in which we held that the HRL was not preempted by either Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976), or by the Railway Labor Act, 45 U.S.C. §§ 151—188 (1976). See 650 F.2d at 1296-1301. The rationale of those discussions remains applicable, however, to the sections of our prior opinion that held that New York’s Disability Benefits Law, N.Y. Work. Comp. Law § 205(3) (McKinney Supp. 1980-1981), insofar as it requires employers to provide certain minimum benefits for pregnancy-related disability, is not preempted by Title VII or the Railway Labor Act. See 650 F.2d at 1301-02.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. Nathan STEIN, Appellant.
No. 91-3368.
United States Court of Appeals, Eighth Circuit.
Submitted April 14, 1992.
Decided Aug. 10, 1992.
Thomas Cotter, St. Louis, Mo., argued (Norman London, on the brief), for appellant.
Rosemary Casey Meyers, Asst. U.S. Atty., St. Louis, Mo., argued, for appellee.
Before JOHN R. GIBSON, Circuit Judge, PECK, Senior Circuit Judge, and BEAM, Circuit Judge.
The HONORABLE JOHN W. PECK, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
BEAM, Circuit Judge.
Nathan C. Stein was convicted of two counts of bribing a public official, in violation of 18 U.S.C. § 201(b)(1). He appeals from the judgment of the district court, claiming that the district court erred in calculating his offense level because he was the victim of “sentencing entrapment.” We affirm.
I. BACKGROUND
Stein was a certified public accountant, with an office in St. Louis, Missouri. Trial Transcript at 451. His practice included tax return preparation and representing clients before the IRS. Id. at 4-5. One of Stein’s clients was the Field Floor Company, a carpet and floor covering business. Id. at 2-3. Field Floor hired Stein in 1987 to help it resolve its delinquent tax problem. Some time later, Stein purchased some carpet from his client, at a cost of nearly $10,000, for installation in a house he was then renovating. Id. at 15. In late August 1987, the IRS was about to close Field Floor’s business because of its continued delinquency. Stein realized that this might prevent the delivery and installation of his carpet. Stein telephoned Frank Lip-ski, the IRS officer assigned to collect Field Floor’s taxes, and explained his problem and the construction delays on his home. Stein asked Lipski to delay the closing of Field Floor until after his carpet was installed. In consideration for the delay, Stein offered Lipski the use of his home at Lake of the Ozarks for a weekend. Id. at 148-51. Lipski declined the offer and reported the conversation to his supervisor. Id. at 152. (IRS inspectors thereafter recorded all telephone calls between Stein and Lipski. Id. at 154.) A couple of weeks later, Stein offered the, use of his lake home to Lipski again. This time, at the direction of IRS agents, Lipski accepted the offer. Id. at 587. Once Stein’s carpet was installed, Stein informed Lipski that he could close the Field Floor business and suggested to Lipski that they continue to work together. Id. at 222.
Approximately one month before Stein offered the use of his lake home to Lipski, IRS agents had already planned an undercover operation to investigate Stein. Agents had heard allegations that Stein was making “illegal offers and compromise^].” Id. at 536, 587-88. To investigate these allegations, they established a fictitious tax account in the name of Joseph Gallo, with an IRS agent playing the role of Gallo. Id. at 427-31. This undercover operation was postponed when Stein offered his bribe to Lipski, but it was continued again in November 1987, with the collection of Gallo’s delinquent taxes assigned to Lipski. Id. at 593-94.
Lipski began his collection of Gallo’s “delinquency” by filing fictitious federal tax liens against Gallo in the amount of $116,-156.22. Id. at 226. In January 1988, after the liens were filed, Stein sent a letter to Gallo offering to represent him. Id. at 431-32. (Stein’s accounting firm had a practice of sending such letters to taxpayers against whom liens in amounts of at least $10,000 were filed. Id. at 43.) Stein then met with Gallo and suggested that he conceal his assets, in preparation for making an offer to the IRS in an amount lower than was owed. Later, Stein met with Lipski and suggested to him that he “bury” Gallo’s delinquent account, meaning “to put it in uncollectible status.” Id. at 242. Lipski agreed to do so and Stein later gave Lipski $700 of $1,000 he had received from Gallo as a down payment on the bribe. Stein then reached an agreement with Lip-ski that the bribe amount would be $30,000 (Lipski had suggested a much lower amount), with $20,000 for Lipski and $10,-000 for Stein. Gallo eventually agreed to pay $20,000, but before any money changed hands, Stein was arrested. Id. at 255-63.
Following a jury trial, Stein was convicted, as noted above, of two counts of bribing a public official. The first count of conviction was for the bribe to Lipski in consideration for delaying the closing of the Field Floor Company. The second count of conviction was for Stein’s bribe to Lipski on behalf of Gallo. At sentencing, the district court calculated Stein’s offense level, as required by the guidelines, according to the amount of Stem’s bribes. Under the guidelines, the severity of an offense level increases incrementally, according to the amount of a bribe. Pursuant to U.S.S.G. § 2C1.1 and Application Note 2 of that section, the “amount of a bribe” is to be determined by looking to the “greater of the value of the bribe or the value of the benefit received, or to be received, in return for the bribe.” U.S.S.G. § 2C1.1, comment. (n. 2). In Stein’s case, the value of the benefit received in his second count of conviction was the greater, value — that is, the elimination of Gallo’s tax liability of $116,156.22.
II. DISCUSSION
Stein claims that the district court erred in calculating the offense level for his second count of conviction. He argues that the government’s actions amounted to “sentencing entrapment” because the value of the bribe, which was determined by the IRS when it set up the fictitious account for Gallo, ultimately determined the severity of his sentence. Stein argues that because the IRS knew his office would send a letter to anyone against whom a tax lien of at least $10,000 was filed, the government, by filing fictitious tax liens in the amount of about $116,000, laid a bigger trap, so to speak, than was necessary. It is Stein’s position, apparently, that the government’s actions were a violation of the due process clause of the Fifth Amendment. We disagree.
To date, we have not recognized “sentencing entrapment” in this circuit. In United States v. Lenfesty, 923 F.2d 1293 (8th Cir.), cert. denied, — U.S.-, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991), we noted that the argument, at least with respect to an amount of illicit drugs, might “bear fruit” if “outrageous official conduct overcomes the will of an individual predisposed only to dealing in small quantities.” Id. at 1300. In Lenfesty, the record showed that the defendant was predisposed in the opposite respect — that is, he was willing to supply drugs in any quantity desired. Id. See also United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992) (noting that the guidelines may permit “sentencing factor manipulation,” but declining “to chart the line between permissible and impermissible conduct”; sentencing court, moreover, has power to exclude “the tainted transaction” or depart); United States v. Stuart, 923 F.2d 607, 613-14 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991) (record does not show that the defendant committed a drug offense “greater than that which he was predisposed to commit”); cf. United States v. Barth, 788 F.Supp. 1055, 1057-58 (D.Minn.1992) (departing from guideline-specified sentence on the basis that the government agent made continuous drug buys until the amount of drugs sold by the defendant required a mandatory minimum sentence). The principle suggested in Len-festy can also be applied to Stein’s case, and with a similar result.
If Stein were to succeed in his argument, he would have to demonstrate that the IRS agents acted outrageously in overcoming a predisposition on his part to only offer bribes for clients whose tax liabilities were smaller than Gallo’s. There is nothing in the record of Stein’s case to support this. In fact, there was some evidence that Stein was predisposed to deal in schemes with a high value. Stein, for example, had a practice of sending letters to potential clients against whom tax liens in an amount of at least $10,000 were filed. Stein tries to distinguish Lenfesty on the basis that the repeated drug sales in that case were necessary to an ongoing investigation and that there was no evidence in Lenfesty that the government was attempting to achieve a lengthier prison sentence for the defendant by selling him a larger quantity of drugs. This is not a convincing distinction. It is of no consequence whether the criminal acts were part of an ongoing investigation, and Stein has presented no evidence in his own case that the IRS agents were attempting to achieve a particular sentence for him when they established Gallo’s fictitious tax status. Gallo’s tax liens were filed on November 12, 1987, but the undercover operation investigating Stein was planned and started in the summer of 1987 — well before the sentencing guidelines became effective on November 1, 1987.
III. CONCLUSION
For the reasons stated above, the judgment of the district court is affirmed.
. Stein also argues that the district court erred in permitting certain IRS agents and other government employees to testify after these witnesses had refused to be interviewed by him beforehand without a government attorney present. The issue raised by Stein does not require more than this mention, for the district court did not abuse its discretion in allowing the witnesses to testify and Stein has not demonstrated that he was prejudiced by the district court’s decision.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
William WAGNER, Jack A. Tretheway, and Argus Construction Company, a corporation, Appellants, v. Walter W. FLORA, Mildred L. Flora, Flora Construction Company, a corporation, and Naomi Becker, Appellees.
No. 6554.
United States Court of Appeals Tenth Circuit.
April 18, 1961.
Anthony V. Zarlengo, Denver, Colo. (Herbert A. Shatz, Denver, Colo., was with him on the brief), for appellants.
Robert A. Burgess, Casper, Wyo. (William F. Schoeberlein, Denver, Colo., was with him on the brief), for appellees.
Before MURRAH, Chief Judge, PICKETT, Circuit Judge, and KERR, District Judge.
PER CURIAM.
This appeal is from an order of the District Court dismissing plaintiff-appellants’ complaint for lack of federal jurisdiction.
The action was brought in the Colorado District Court, alleging both diversity of citizenship and a federal question.
It is patently obvious that there is no diversity jurisdiction. The two individual plaintiffs are citizens of Colorado, as are two of the individual defendants. In addition, all parties are apparently indispensable and there is no possibility of realignment. Thus the case falls within the rule which denies diversity jurisdiction when a plaintiff is a citizen of the same state as one of the defendants. See 3 Moore’s Federal Practice, § 18.07; 28 U.S.C. § 1332.
The plaintiffs further contend that defendants have conspired to deprive them of contractual benefits in violation of 28 U.S.C. § 1343, thereby creating a federal question. But that statute contemplates violations of protected civil rights, and does not extend federal jurisdiction to suits for damages growing out of alleged breach of contract. See Walker v. Bank of America, 9 Cir., 268 F.2d 16.
The order of the trial court is therefore affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America v. Joseph FLENORY, Appellant.
No. 88-3817.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) May 18, 1989.
Decided May 26, 1989.
George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for appellant, Joseph Flenory.
Charles D. Sheehy, Acting U.S. Atty., Bonnie R. Schlueter, Asst. U.S. Atty., Pittsburgh, Pa., for appellee, U.S.
Before GIBBONS, Chief Judge, MANSMANN and ALDISERT, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Chief Judge:
Joseph Flenory appeals from an order denying a Fed.R.Crim.P. 35 motion. As a result of a plea bargain in 1976, he was sentenced to six years and nine months for violation of 21 U.S.C. § 841(a)(1), a sentence which included a three-year special parole term. He contends, and for purposes of this appeal we assume, that the federal sentence was to be concurrent with, and not exceeding, a state court sentence and that the purpose of the plea agreement was to avoid the risk of state incarceration because of his cooperation in an investigation.
Flenory was released by the federal authorities in March of 1981. He was taken into state custody and served part of his 1976 state sentence. He was paroled by the state authorities, and he began serving his three-year federal parole term on January 14,1983. In 1984 he was charged with, and pleaded guilty to, indecent assault and theft by deception. The state court sentenced him to two one- to two-year concurrent terms on these charges.
The state also charged Flenory with violation of his parole on the 1976 state sentence, and he was required to serve the remainder of that five- to ten-year term. The Federal Parole Commission revoked his parole on January 8, 1988. Having served all of his state sentence, he now faces an additional three years of federal time. This, he contends, violates the plea agreement made in 1976.
The district court held that it lacked jurisdiction to entertain a Rule 35 motion because the 1976 sentence was not illegal, and thus the 120 day time limit in Rule 35(b) is applicable.
Unquestionably the sentence imposed in 1976 was “legal” in the sense that it was within the statutory maximum, it did not violate double jeopardy, and it was not ambiguous or contradictory. See United States v. Katzin, 824 F.2d 234, 237 (3d Cir.1987). On the other hand, if it violated a plea agreement, it was illegal in the sense that a breach of a plea agreement is ground for the withdrawal of a guilty plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Since on this record we must assume such a breach, the sole question presented is whether Rule 35(a) is a source of authority to afford relief. The question is one of first impression in this court, although at least one other court has held that Rule 35(a) relief is not available for relief from breach of a plea agreement. See United States v. Warren, 610 F.2d 680, 684 (9th Cir.1980); United States v. Stevens, 548 F.2d 1360, 1362 (9th Cir.1977). It is, however, a question we do not answer today, because we decide this case on other grounds.
Whether or not Rule 35 relief is available, it appears that a sentence imposed in violation of a plea bargain is one “imposed in violation of the Constitution or laws of the United States” within the meaning of 28 U.S.C. § 2255. The Rule 35 motion was addressed to the same court that has jurisdiction to entertain a section 2255 motion. The United States was informed of the grounds of the motion. It would elevate form over substance to hold that Flenory’s motion should be denied for lack of jurisdiction because he cited Rule 35 rather than section 2255.
We hold, therefore, that the district court had jurisdiction to entertain Flenory’s contention that the parole feature of the 1976 sentence, if it permits incarceration after completion of his full state sentence, violated a plea bargain. The order appealed from will therefore be reversed, and the case remanded for further proceedings on the merits.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_respond1_1_3
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J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES UNION, et al., Appellants, v. GEORGE A. KRACHER, INC., et al.
No. 86-5442.
United States Court of Appeals, District of Columbia Circuit.
Argued April 11, 1988.
Decided Sept. 16, 1988.
Barbara L. Camens, with whom David S. Barr and David Johnathan Cohen, Washington, D.C., were on the brief, for appellants.
Timothy J. O’Rourke, Washington, D.C., (appointed by the court), amicus curiae, urging affirmance.
Harry C. Citrino, Philadelphia, Pa., entered an appearance for appellees.
Before WALD, Chief Judge, and ROBINSON and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The sole issue on this appeal is whether under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) as amended, liability for a corporation’s delinquent pension contributions extends to an individual who is the organization’s chief officer and principal shareholder. In an action asserting and seeking to enforce this responsibility, the District Court answered that question in the negative. Finding no significant indication that Congress intended to alter the fundamental principle of individual nonliability for corporate debt, we affirm.
I
George A. Kracher, Inc., a Pennsylvania corporation, was party to a collective bargaining agreement with District Council No. 21 of the International Brotherhood of Painters and Allied Trades (IBPAT), AFL-CIO. The agreement required the corporation to make monthly contributions on behalf of its employees to the IBPAT Union and Industry Pension Fund. When the corporation defaulted on some of the payment due in 1985, the Fund sued it in an effort to recover the arrearage. Also named as a defendant was George A. Kracher, its chief officer and dominant shareholder.
Neither the corporation nor Kracher appeared in the District Court action, and the Fund moved for a default judgment. It urged that Kracher be held liable both severally and jointly with the corporation on the theory that he was an “employer” as defined in Title I of ERISA. The Fund did not contend that Kracher was the alter ego of the corporation or that the circumstances required piercing the corporate veil. It maintained only that Kracher was personally and directly liable under the provisions of ERISA.
The District Court entered judgment against the corporation but dismissed the claim against Kracher, ruling that he was not an “employer” within the meaning of the statute. This appeal then followed.
II
Title I of ERISA imposes upon an employer under a contractual duty to pay into a multiemployer pension plan an obligation to make its contributions in a timely fashion. Section 515 provides that
[ejvery employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
Clearly, then, the liability created by Section 515 falls solely upon an “employer ... obligated to make contributions.” Title I of ERISA defines an “employer” as
any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; ... includpng] a group or association of employers acting for an employer in such capacity.
The word “person” includes “an individual” and, among other entities, a “corporation.”
The Fund argues that Kracher fits within these definitions in that he is “an individual,” and as the chief corporate officer and principal shareholder who made all corporate decisions regarding payment of pension contributions, he acted "indirectly in the interest of an employer” — Kracher, Inc. —“in relation to an employee benefit plan.” According to the Fund, this “broad statutory language” is evidence of a congressional intent to include dominant corporate owners and officials within the scope of employer liability for delinquent contributions. The Fund also relies upon a bit of the legislative history:
It is intended that the coverage of the Act be construed liberally to provide the maximum degree of protection to working men and women covered by private retirement programs. Conversely, exemptions should be confined to their narrow purpose.
This canon of liberal construction, along with the characterization of ERISA as a comprehensive remedial statute designed to protect workers’ pension rights, leads the Fund to conclude that Congress intended to extend liability to corporate officers such as Kracher. We disagree.
Neither the plan nor the collective bargaining agreement contains any provision tending to impose personal liability on Kracher. Only the corporation, as signatory to the agreement, fits within the parameters of Section 515 as the “employer who is obligated to make contributions ... under the terms of” either the plan or the agreement. Nor do the statutory definitions of “employer” and “person” supply the necessary link between liability and Kracher individually. It cannot be said that a corporate official is a “person acting directly as an employer.” It is hornbook law that a corporate employee functioning purely as such acts not as but solely for the corporate employer; the corporation acts as the employer it is, though it can do so only through the agency of the employee or someone else. Moreover, we think it would be foolhardy to consider Kracher as one who “act[ed] indirectly in the interest of an employer.” Such an expansive reading would mean that every employee or other agent who discharges some responsibility in regard to a corporation’s employee benefit plan would be swept within the definition and thereby become an “employer” subject to liability for delinquent contributions. Obviously Congress did not contemplate that.
Ill
The Fund says, however, that the difficulties to which we have adverted could be ameliorated by incorporating an “economic reality” test into the definition of “employer.” This would mean that individual liability would be imposed only when a corporate officer has a substantial ownership interest and has actually exercised operational control over a corporate matter underlying the statutory violation — here, nonpayment of pension contributions. The Fund asserts that congressional intent for such an outcome can be derived by analogizing ERISA to the Fair Labor Standards Act (FLSA), in connection with which the caselaw employs an economic reality test in determining liability for unpaid wages. The Fund notes that the two statutes have similar definitions of employer and that both are instances of remedial social legislation serving the purpose of protecting employee compensation — FLSA in regard to workers’ wages, and ERISA with respect to employee benefit plans. Because of the close resemblance of congressional purposes and statutory definitions, the Fund contends that FLSA caselaw interpreting employer liability should be followed under ERISA, and that corporate owner-officers should be held personally liable for overdue pension contributions just as they would be for unpaid wages under FLSA.
The Fund argues that while importation of the economic reality test into Title I of ERISA would seal Kracher’s liability, it would not result in automatic penetration of the corporate veil. Rather, individual liability would accrue only when the individual targeted has a substantial ownership interest in the corporation and actual control over matters precipitating nonpayment of pension contributions. We decline, however, the Fund’s invitation to travel the path it would lead us down.
First, and perhaps most significantly, there is no indication that Congress intended to incorporate FLSA caselaw into ERISA’s definition of “employer.” When ERISA was enacted in 1974, it defined “employer” exactly as it does today, but at that time it conferred no statutory remedy for delinquencies in contributing. A cause of action therefor did not become available under the Act until passage of the Mul-tiemployer Pension Plan Amendment Act of 1980 (MPPAA). It is impossible to read into a definition of “employer” adopted in 1974 any congressional purpose to specify essential elements of a statutory right of action for recovery of unpaid contributions that did not exist until 1980.
There is also a significant difference between the operation of ERISA and FLSA, respectively. ERISA does not require employers to provide pension plans; the obligation to do so, and to contribute to them, springs from a privately-made contract embodied in a plan or a collective bargaining agreement. FLSA, however, commands employers to pay specified wages. This fundamental deviation, together with the complete absence of evidence that Congress had in mind the interpretation urged upon us by the Fund, constrains us to reject the notion that FLSA caselaw should be assigned a role in the context of Title I of ERISA.
Even without analogy to FLSA, the Fund maintains, there is enough of a manifestation of congressional intent in the enactment of Section 515 to indicate that liability was to extend to dominant corporate owners and officers. The Fund attempts to brace this position by referring to Congress’ concern about delinquent contributions and their serious impact on the financial stability of employee pension funds. We find the argument unpersuasive. The legislative history discloses that Section 515 was added to ERISA to simplify litigation over unpaid contributions, not to expand the universe of potential defendants. The Senate sponsors of that provision stated that
[rjecourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome and costly. Some simple collection actions brought by plan trustees have been converted into lengthy, costly, and complex litigation concerning claims and defenses unrelated to the employer’s promise and the plan’s entitlement to the contributions. This should not be the case.
Similarly, the staff of the Senate Committee on Labor and Human Resources explained the reason for amending ERISA by adoption of Section 515:
The public policy of this legislation to foster the preservation of the private multiemployer plan system mandates that provision be made to discourage delinquencies and simplify delinquency collection. The bill imposes a Federal statutory duty to contribute on employers that are already contractually obligated to make contributions to multi-em-ployer plans_ The intent of this section is to promote the prompt payment of contributions and assist plans in recovering the cost incurred in connection with delinquencies.
We are unable to equate these statements of congressional purpose with an indication of congressional intent to hold corporate owners and officers liable for corporate failure to remit contributions owing to employee pension plans. There is nothing in the legislative history that suggests that Congress meant to expand that liability beyond parties who in a plan or collective bargaining agreement obligated themselves to make those contributions. In this case, that party is the corporation itself.
IV
Limited liability is a hallmark of corporate law. Surely if Congress had decided to alter such a universal and time-honored concept, it would have signaled that resolve somehow in the legislative history. We may usefully recall what quite recently in Connors v. P & M Coal Co. we announced:
We find nothing in either the language or purpose of the MPPAA to justify so significant a compromise of the corporate principle of limited liability, nothing to suggest that Congress intended to subject owner-operators of a closely held corporation to personal liability merely because they actively participated in running the business. Acceptance of the district court’s “interest and control” test would not only subvert the major purpose of incorporation, but would discourage future participation in multiemployer pension plans — a result that is clearly contrary to one of MPPAA’s stated objectives.
Connors held that corporate owner-officers were not personally liable under the withdrawal liability provisions of ERISA. Nonetheless, though Connors involved Title IV withdrawal liability rather than Title I delinquent-contribution liability, the doctrine of individual nonliability for corporate debt poses the same limitation for each. Connors’ determination on the vitality of the doctrine is just as compelling here.
The same conclusion has been reached in sister circuits. The Third, in Solomon v. Klein, declared that it could “find nothing in the legislative history to indicate that Congress intended to impose a personal liability on a shareholder or a high-ranking officer of a corporation for ERISA contributions owed by the corporation.” Other circuits echo that view. As we said in Connors, abrogation of the fundamental principle of corporate limited liability will “require more than an expansive interpretation of a definition.” We hold that liability for delinquent pension contributions under Section 515 of ERISA does not extend to an individual corporate owner or officer.
The judgment of the District Court is
AFFIRMED.
. 29 U.S.C. §§ 1001 et seq. (1982).
. The Fund is a multiemployer employee pension benefit plan within the meaning of ERISA. Id. § 1002(2)(A)(i), 37(A) (1982).
. Id. § 1002(5).
. International Bhd. of Painters & Allied Trades Union & Indus. Pension Fund v. George A. Kracher, Inc., Civ. No. 85-3316 (D.D.C. May 28, 1985) (judgment), Record Excerpts 46.
. 29 U.S.C. § 1145 (1982).
. Massachusetts Laborers’ Health & Welfare Fund v. Starrett Paving Corp., 845 F.2d 23, 24 (1st Cir.1988) (emphasis added); Solomon v. Laranne Sportswear Corp., 648 F.Supp. 407, 409 (E.D.N.Y.1986).
. 29 U.S.C. § 1002(5) (1982).
. Id. § 1002(9).
. Brief for Appellant at 9.
. Id.
. S.Rep. No. 127, 93d Cong., 1st Sess. 18 (1973).
. See Combs v. Sun-Up Coal Co., 634 F.Supp. 13 (D.D.C.1985), which applied the statutory definition of employer in a withdrawal liability case. Combs posited an example that would reasonably fall within the quoted language. The court noted that in the garment industry a contractor is generally the common law employer of employees covered under its plan, but that a manufacturer or jobber dealing with the contractor often has the obligation under its own collective bargaining agreement to contribute to the plan on the basis of the contracted-for work. Id. at 15 n. 5. The statutory language is conducive to application to a separate business entity, but not to a corporate officer or shareholder.
. Brief for Appellant at 15-21.
. 29 U.S.C. §§ 201 et seq. (1982).
. See Donovan v. Agnew, 712 F.2d 1509 (1st Cir.1983); United States v. Stanley, 416 F.2d 317 (2d Cir.1969); Donovan v. Grim Hotel, Inc., 747 F.2d 966 (5th Cir.1984), cert. denied, 471 U.S. 1124, 105 S.Ct. 2654, 86 L.Ed.2d 272 (1985); Chambers Constr. Co. v. Mitchell, 233 F.2d 717 (8th Cir.1956).
. See Massachusetts State Carpenters Pension Fund v. Atlantic Diving Co., 635 F.Supp. 9 (D.Mass.1984); accord, Rubenstein v. Tri-State Transp., 646 F.Supp. 1 (D.Mass.1984).
. See Donovan v. Agnew, supra note 15, 712 F.2d at 514 (FLSA case) ("we review the liability of corporate officers with a significant ownership interest who had operational control of significant aspects of the corporation’s day to day functions, including compensation of employees, and who personally made decisions to continue operations despite financial adversity during the period of nonpayment”).
. Pub.L. No. 96-364, 94 Stat. 1208, 29 U.S.C. § 1001, et seq. (1982).
. Brief for Appellant at 12-15.
. 126 Cong.Rec. 23,288 (1980) (remarks of Sens. Williams and Javits); see also Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 86-87, 102 S.Ct. 851, 861, 70 L.Ed.2d 833, 846 (1982).
. Staff of Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., S. 1076—The Multi-Employer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration, 44 (Comm.Print Apr. 1980) (emphasis added).
. 255 U.S.App.D.C. 334, 801 F.2d 1373 (1986).
. Id. at 337, 801 F.2d at 1376.
. 770 F.2d 352 (3d Cir.1985).
. Id. at 354.
. Massachusetts Laborers’ Health & Welfare Fund v. Starrett Paving Corp., supra note 6; Operating Eng’rs Pension Trust v. Reed, 726 F.2d 513 (9th Cir.1984).
. 255 U.S.App.D.C. at 338, 801 F.2d at 1377.
. We stress again that this case involves no claim of alter ego or conduct that might result in the necessity to pierce the corporate veil.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_usc1
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29
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILK DRIVERS’ UNION, LOCAL NO. 753, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, and Associated Milk Dealers, Inc., and Various of Its Employer Members, Respondents, and Korth Transportation Company, Intervenor.
No. 16005.
United States Court of Appeals Seventh Circuit.
Jan. 11, 1968.
Rehearing Denied April 29, 1968.
Marcel Mallet-Prevost, Asst. General Counsel, Gary Green, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Linda Sher, Atty., N.L.R.B., for petitioner N.L.R.B.
Joseph A. Melli, Robert W. Smith, John P. McCrory, Madison, Wis., for intervenor.
John B. Swern, William T. Kirby, John Paul Stevens, Donald E. Egan, Joseph M. Jacobs, Charles J. Griffin, Jr., Fred C. Nonnamaker, Jr., Chicago, 111., for respondent Milk Drivers’ Union, Local No. 753. Jacobs & Gore, Chicago, 111., of counsel.
Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
CASTLE, Circuit Judge.
This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued on June 27, 1966, against the respondent Union and the respondents Associated Milk Dealers, Inc., and certain of Associated’s member dairies. The Board’s decision and order are reported at 159 NLRB No. 128.
The Board found and concluded that the Union, Associated and the dairies violated Section 8 (e) of the Act by entering into an agreement prohibiting the dairies from utilizing the services of independent over-the-road haulers, not under a collective bargaining contract with Local 753, for the transportation of raw milk to the processing dairies. The Board’s order requires the respondents to cease and refrain from giving effect to the agreement insofar as it violates Section 8(e) and to post designated notices.
The record discloses that Local 753 represents for purposes of collective bargaining transportation workers in the dairy industry in the metropolitan Chicago area whose transportation equipment is garaged or based in the Chicago metropolitan area. The territorial limitation on the jurisdiction of Local 753 is imposed by the International Teamsters Union. Drivers operating in the metropolitan Chicago milk industry whose equipment is based elsewhere are not subject to the jurisdiction of Local 753. A number of haulers who transport raw milk from Wisconsin to dairies in the metropolitan Chicago area are independent contractors who use their own equipment, operated by their own employees, and are parties to collective bargaining agreements with Wisconsin Locals of the International Teamsters Union. Other independent over-the-road haulers engaged in the transportation of raw milk from country sources to the processor-dairies, and whose equipment is garaged in the Chicago metropolitan area, have collective bargaining agreements with Local 753 and their employees are members of Local 753. All but two of the approximately 28 dairies involved were using independent haulers rather than their own employees to bring their raw milk supply to their plants. These two dairies had but 15 employees engaged in the transportation of raw milk while the independent haulers who do the bulk of the industry’s raw milk haulage had over 100 employees so engaged. For the past thirty years at least, independent haulers have done the bulk of the transportation of raw milk from country sources in the Chicago metropolitan area milk industry. And, as above indicated, not all of the dairies use haulers of raw milk whose equipment is garaged or based in the Chicago metropolitan area and whose employees are members of Local 753.
Following contract negotiations in 1964 between Local 753 and Associated, who represented its member dairies, the respondent dairies during May 1964 executed collective bargaining agreements with Local 753 which in Article 43-B provide:
“ * * * All Dealers must employ members of Local 753 to operate the transportation equipment. The final date for full compliance shall be August 15, 1964.”
The term “dealers” is used in the agreements as descriptive of the signatory dairies.
The issue presented for our determination on review is whether substantial evidence on the record considered as a whole supports the Board’s determination that the object of Article 43-B was to prohibit the dairies from dealing with the independent haulers whose employees are members of the Wisconsin locals, and therefore was a violation of Section 8(e).
If the Board’s factual findings are so supported its conclusion that the contract clause violated Section 8(e) as a form of secondary boycott is correct. National Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357; Cf. N.L.R.B. v. Milk Wagon Drivers’ Union Local 753, 7 Cir., 335 F.2d 326, 328-329. In the latter case this Court said:
“The record as we decide gives substantial support to the Board’s findings of the Union’s unlawful objectives —to forbid contracting out of hauling except to employers whose employees were members of Local 753, and to compel Wanzer [a dairy] to disrupt an existing business relationship with PMA [a milk supplier] because Quality’s [a Wisconsin hauler] drivers were not members of Local 753.”
The Union contends that the record properly appraised and evaluated does not support the Board’s finding as to the objective of Article 43-B. In this connection the Union urges that the objective of the clause was merely to prohibit the contracting out of the over-the-road hauling and thereby to require the dairies to use their own employees, the bargaining unit represented by Local 753, for such purpose, and that such objective is a legitimate goal of collective bargaining.
The record reflects that the Board’s findings with respect to the objective of Article 43-B were not arrived at merely by reference to its express language. It was observed that the provisions “cannot be read in a vacuum”. The Board’s determination of the objective of the clause was based on a combination of factors, including the context of the circumstances leading up to the Union’s demand for such clause, the labor relations history of the subject, representations made by the Union’s officials and agents concerning the effect of the clause, and the consequences of viewing the clause as a total ban on contracting out of over-the-road hauling on the segment of Local 753’s membership currently so employed by independent haulers.
The Union, on the basis of the contract’s union security clause, equates the expression “members of Local 753” used in Article 43-B with “employees” of the signatory dairy and interprets the clause as imposing merely a total ban on the contracting out of the hauling. But consideration of the body of the evidence relating to the factors above mentioned negates a conclusion that such was the objective of the clause or that it was intended to do other than eliminate the limiting effect, numerically, on Local 753’s potential source of prospective members resulting from- the operation of the Wisconsin-based independent haulers, i. e., to require the dairies to cease utilizing the services of independent haulers whose employees were not members of Local 753.
There is evidence that, at least since the early 1950’s, Local 753 was concerned over the fact that the northern (Wisconsin) locals rather than it represented employees of a number of independent haulers serving Chicago area dairies. Local 753 considered that these employees, engaged in the transportation of raw milk to Chicago area dairies, should be members of Local 753. William McNulty, president of Local 753, testified, in this respect, that, “[i]f our International would have allowed us to we would have had all of those people in our Union”. In 1957, under the auspices of the International, Local 753 and the Wisconsin locals entered into a “treaty” under which it was agreed that where operations of employees represented by northern locals extended into Local 753’s geographical jurisdiction, the applicable employee benefits would be those of Local 753 or of the involved northern local, whichever were greater; that transfer of the union membership of employees in the Wisconsin locals be made to Local 753 according to a specified ratio; and that independent haulers (Milk Tank Truck operators) operating in, or into the Chicago area be signators to both Chicago and Wisconsin agreements. But the “treaty” apparently failed to effect a solution satisfactory to Local 753. In any event, during negotiations preceding the 1961 collective bargaining agreement between Local 753 and the dairies, Thomas Haggerty, secretary-treasurer of Local 753, referred to the problem in a discussion with Thomas Gilmore, attorney for Associated and chief negotiator for the dairies, and stated he wanted a contract clause “in order to get these jobs that these northern locals had”. In this, and in subsequent discussions in later years between representatives of Local 753 and representatives of Associated and the dairies, the latter took the position that the matter was a dispute between sister locals which should be settled by the International. Nevertheless, Associated and the dairies acceded to clauses addressed to the problem, although somewhat obliquely, in both the 1961 and 1963 agreements with the Union. At the first meeting for negotiation of a 1964 contract Haggerty submitted proposals for changes, including a proposal to replace Article 44 of the 1963 contract with the following provision:
“All dealers must employ members of Local 753 to operate their equipment.”
No formal discussion of what would be required by the proposed clause took place during the negotiation sessions. Haggerty did assert, however, that Article 44 had not accomplished its objective, and the new provision was necessary to “take care of the transportation situation”. Midway through the negotiations, the Union, sua sponte, changed the language of the proposed clause to substitute “the transportation equipment” for “their equipment”, and in the final meeting added the provision suspending compliance until August 15, 1964. Gilmore was advised by Haggerty that the clause was a “must”. The dairies acceded thereto, and thus the Union’s latest effort addressed to what it considered to be the “problem” resulting from the representation of employees serving Chicago area dairies by the Wisconsin locals rather than by Local 753, culminated in agreements incorporating Article 43-B.
There is evidence that after the negotiations were concluded McNulty inquired of one of the dairies served by an independent hauler whose employees were members of a Wisconsin local if arrangements had been made for the hauling to be done by “753 personnel” and warned that the time was short. When an independent hauler whose employees were represented by Local 753 expressed concern about the effect of Article 43-B to the Local’s business agent, Francis Gorney, the latter advised the hauler that the Article would have no effect on it because-the hauler was “Local 753 in good standing”. Haggerty advised another independent hauler whose employees were represented by Local 753 that if he had any idle equipment he should contact dairies and solicit hauling because there would be plenty of such work available after August 15.
Thus, in the light of the record, the Union’s attempt to interpret Article 43-B as merely a prohibition on the contracting out of the over-the-road hauling does not square with the Union’s expressed objective and its activities with respect to the subject matter. In the area here involved the record reflects a concern of Local 753 in increasing its membership at the expense of the Wisconsin locals rather than the protection of the work opportunities of its bargaining unit — a concern with membership, not jobs. And the Union’s interpretation of the effect of Article 43-B on the independent haulers with which the Union had collective bargaining agreements was wholly inconsistent with an interpretation of the clause as imposing a total ban on the contracting out of over-the-road hauling by the dairies. The Union indicated it would be satisfied if the hauling were performed by “members of Local 753” irrespective of whether they were employees of the dairies or employees of independent haulers.
Moreover, the immediate effect of Article 43-B if it be regarded as prohibiting the contracting out of the over-the-road hauling would be at odds with its alleged goal of job protection. If Article 43-B requires dairies to use only their own employees for such hauling, then some 50 members of the unit — the employees of the Local 753 independent haulers — would be adversely affected.
We conclude that the Board'3 order is supported by substantial evidence on the record considered as a whole. In arriving at this conclusion we are not unmindful of the fact that there is some testimony in the record which tends to support the position of the Union. But the examiner’s report shows that such of that testimony as was credited was considered but did not dictate a contrary conclusion in face of the body of opposing evidence. We perceive no basis for disturbing the Board’s ultimate findings and conclusions on that score..
Accordingly, it is ordered that the Board’s order be enforced and that a decree issue for that purpose.
Enforcement Ordered.
. Milk Drivers’ Union, Local No. 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Sometimes referred to herein as “Union” or “Local 753”.
. Section 8(e) of the National Labor Relations Act, as amended, (29 U.S.C.A. § 158(e)) which, in pertinent part, makes it an unfair labor practice for a labor organization and an employer:
“ * * * to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees * * * to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: * *
. Korth Transportation Company, the intervenor herein, is such an independent Wisconsin hauler.
. The same form of agreement was utilized for execution by other employers in the milk industry, including distributors and master vendors who do not do their own processing of raw milk. The provisions concerning over-the-road hauling have no application to such distributors and master vendors.
. There is no evidence relating to actual application of the clause or of operation thereunder inasmuch as with the filing of the unfair labor practice charge on June 22, 1964, enforcement of the clause was by agreement postponed pending a Board decision, and the Regional Director did not further pursue an application for injunctive relief he had filed.
. Article 44 of the 1961 contract provided: “The transportation division shall not be reduced from its present status and immediate steps shall be taken to restore our members’ jobs in all other plants covered by this agreement.”
Article 44 of the 1963 contract provided:
“Transportation division shall not be reduced from its present status and immediate steps shall be taken to restore these jobs in all plants covered by this Agreement. Substantial progress shall be shown by August 15, 1963.”
. Before the Board, Haggerty and McNulty testified that the substitution was made so that the dairies would be permitted to use leased equipment. Haggerty stated: “That meant I think probably some of the dealers probably raised the question with regards to whether or not they had to purchase the equipment * * *
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
BUCKNER et al. v. TWEED.
No. 9128.
United States Court of Appeals District of Columbia.
Argued May 21, 1946.
Decided Sept. 16, 1946.
Mr. Arthur L. Willcher, of Washington, D. C., with whom Mr. Ben Lindas, of Washington, D. C, was on the brief, for appellants.
Mr. Arthur J. Hilland, of Washington, D. C., for appellee.
Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices. ,
EDGERTON, Associate Justice.
This is an appeal by the defendants from an affirmance by the Municipal Court of Appeals for the District of Columbia of a judgment for a real estate broker in a suit for a commission. 44 A.2d 224.
Appellants had employed appellee, the broker, to find a purchaser for their property at $19,500. He procured and submitted to them a signed offer in the form of a contract, dated April 18, 1943, at a price of $16,950. This contract provided that the purchaser was to place a first trust of $11,000 on the property, pay appellants $3,500 in cash, and give them a second trust for the balance, which was $2,450. It also provided that the property was to be sold free of encumbrances. Settlement was to be in 30 days. Appellants signed this contract.
Appellee wrote on appellants’ copy of the contract, but not on the purchaser’s copy, an endorsement to the effect that appellants were not to pay any bonus for releasing an existing first trust. The purchaser afterwards promised to pay “not over $43” for the purpose of releasing that trust. In the view we take of the matter, we need not decide whether these variations deprived tlje contract of binding force as between appellants and the purchaser.
To place a first trust of $11,000 it would have been necessary to pay off an existing first trust of $6,100. The holder of the outstanding trust notes refu'sed to accept payment, which was not yet due, but offered to increase the loan to $9,500. This was acceptable to the purchaser. The parties met on May 6, 1943 to close the sale. The purchaser proposed to execute a first trust of $9,500 and if appellants desired, to pay the entire balance of the purchase price in cash. Appellants declined this proposal, on the grounds that the contract called for a first trust of $11,000 and that no second trust to them had been prepared. Appellants nevertheless executed a deed and deposited it with the title company together with these instructions: “ * * * This deed is not to be recorded unless and until the terms of the contract of sale dated April 18, 1943, are strictly complied with by the purchaser, i. e., that they place a first lien deed of trust on the property of $11,000; a $3500 cash payment; the balance secured by a deferred purchase money trust * * The parties agreed to meet again at the title company’s office on May 18 to close the sale. On May 12 either appellee or the purchaser' ordered from the title company a second trust deed of $2,450 from the purchaser to appellants. That deed was duly prepared. But on May 12 appellants withdrew their deed from the title company. At the meeting on May 18 appellants, without tendering a deed, again insisted that the purchaser secure a release of the existing first trust and place a new trust of $11,000, and refused to proceed on any other basis. As appellants state in their brief, efforts to complete the sale failed “because the existing first trust was not released, thereby making it impossible to place a new first trust for $11,000”.
Appellee was entitled to a commission if he produced a purchaser ready, willing and able to buy upon appellants’ terms. A material deviation from those terms would defeat appellee’s claim. The contract of April 18 as modified by the endorsement on appellants’ copy, whether or not the contract was valid as between appellants and the purchaser, stated appellants’ terms. The question is whether the plan which the purchaser was ready to carry out did or did not deviate materially from those terms.
If the terms of the contract with its endorsement had been strictly carried out, appellants would have received-(1) $3,500 in cash provided by the purchaser; (2) $4,900 additional cash, consisting of the difference between the existing $6,100 first trust and the proceeds of a new $11,000 first trust; and (3) a $2,450 second trust subordinate to an $11,000 first trust. By the plan which the purchaser was ready to carry out appellants would have received (1) $3,500 in cash provided by the purchaser; (2) $4,900 additional cash, consisting of (a) the $3,400 difference between the existing $6,100 first trust and the proceeds of a new $9,500 first trust and (b) $1,500 additional cash provided by the purchaser; and (3) a $2,450 second trust subordinate to a $9,500 first trust. Thus appellants were to receive the same amount of cash, and also the same amount in second-trust notes, under the two plans. The only difference in what appellants were to receive was that their second trust would have been better secured by the purchaser’s terms than by the contract terms, since it would have been junior to a $9,500 trust instead of being junior to an $11,000 trust.
Thus the purchaser not only met but bettered appellants’ terms as stated in the contract and endorsement. Appellants are in much the same position as a man who refuses to accept $101 because his contract called for only $100. Perhaps appellants might, by inserting in the contract language plainly indicating that they desired the weaker security and would not be satisfied with a stronger one, have made it material that their trust be junior to a lien of $11,000 and not merely to a lien of $9,500. But so improbable an intention cannot be read into the actual language of the contract, which was simply that “the purchaser is to place” a first trust of $11,000. In form, that language was a mere statement of what the purchaser would do. In purpose and therefore in effect, it was not a condition upon which appellants insisted but a privilege which they allowed the purchaser. Appellants were consenting that their deferred purchase-money trust of $2,450 might be junior to a trust of $11,000; in other words, that the purchaser might raise $11,000 by placing a prior encumbrance on the property. A deviation which is either trifling or, as here, wholly favorable to the seller, from a term to which the seller has consented for the benefit of the purchaser, does not defeat the broker’s right to a commission. He does not forfeit his commission by procuring from the purchaser either more money or more security than the seller has consented to accept. Appellants could not, by the instructions which they gave to the title company, turn the purchaser’s privilege into a requirement, so far as the broker’s rights are concerned.
Appellants urge that a tender by the purchaser was necessary. Appellants’ refusal to proceed on the basis of a $9,500 first trust would have dispensed with any such requirement, even apart from the fact that appellants tendered no deed. Moreover the purchaser’s rights are not in issue here.
Appellants’ other contentions are also without merit.
Affirmed.
Heurich v. Sullivan. 52 App.D.C. 95, 281 F. 599.
“Nowhere would a departure from full performance of a condition be regarded as important if the departure were an inconsiderable trifle having no pecuniary importance”. 3 Williston, Contracts, § 805; cf. 842. Pacific-Wyoming Oil Co. v. Carter Oil Co., 31 Wyo. 314, 226 P. 193; Porter v. Traders’ Ins. Co. of Chicago, 164 N.Y. 504, 58 N.E. 641, 52 L.R.A. 424; Gregg v. England Loan Co., 171 Ark. 930, 287 S.W. 161; Houser v. Vose, 33 Ga. App. 451, 126 S.E. 869.
Spears v. Carter, 224 Mo.App. 726, 24 S.W.2d 717.
Restatement of the Law of Agency, § 445d. .
Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L.Ed. 190; 6 Williston, Contracts, § 1819; Restatement of Contracts, §306.
Judkins v. Charette, 255 Mass. 76, 151 N.E. 81, 45 A.L.R. 1; 4 Williston, Contracts, §924; 27 R.C.L. 522.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
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.
Margaret F. SCHELL, Administratrix, Plaintiff, Appellant, v. FORD MOTOR COMPANY, Defendant, Appellee.
No. 5493.
United States Court of Appeals First Circuit.
Sept. 1, 1959.
Dwight L. Allison, Boston, Mass., with whom Benjamin F. Fordo, Jr., Boston, Mass., was on brief, for appellant.
Samuel P. Sears, Boston, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Chief Judge.
There is no substantial dispute over the basic facts before us on this appeal.
The plaintiff’s intestate was a painter employed by J. I. Hass Company, Inc., which had a contract to paint the interior of the defendant’s plant in Somerville, Massachusetts. He, with other painters, on orders of their employer, reported for work at the gate of defendant’s plant at about 7:20 on the morning of. October 8, 1954. There they were informed by the defendant’s uniformed guard that they would have to make out a pass before they would be allowed to enter the premises and they were handed cards perforated down the middle, one side labeled Personal Pass and the other side labeled Waiver, and told to sign both parts of the same. The card was handed to the plaintiff’s intestate folded over with the waiver section underneath.
The plaintiff’s intestate took the card to a window sill, filled in the pass section with his name and other indicated data, and signed both sections of the card. He did not read the waiver section. He handed the card to the guard at the gate who tore it in two'along the perforations and, retaining the waiver section, handed the pass section to the plaintiff’s intestate with instructions to keep it on his person during working hours, to turn it in when he left the premises at the end of his day’s work and to pick it up again the next morning when he returned to work. A few days later the plaintiff’s intestate was injured by falling off a ladder on which he was working when it was struck by a fork truck operated by a Ford Motor Company employee.
The plaintiff’s intestate brought suit to recover for his injuries in the appropriate court of the Commonwealth of Massachusetts from which it was removed by the Ford Motor Company to the court below, there being the requisite diversity of citizenship and amount in controversy for federal jurisdiction under Title 28 U.S.C. § 1332(a) (1)
The defendant answered pleading the waiver in defense, and also other matters not now before us, and moved for summary judgment. Its motion was granted and the plaintiff thereupon took the present appeal.
There can be no doubt, and the District Court ruled, that under the law of Massachusetts, and of course Massachusetts law applies, in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf. Barrett v. Conragan, 1938, 302 Mass. 33, 18 N.E.2d 369. And “The general rule is that, in the absence of fraud, one who signs a written agreement is bound by its terms whether he reads and understands it or not or whether he can read or not.” Cohen v. Santoianni, 1953, 330 Mass. 187, 193, 112 N.E.2d 267, 271.
The question before us, then, is whether under the law of Massachusetts the facts outlined above present any substantial issue of fraud which, of course, in Massachusetts as elsewhere is an issue of fact. We think that they do, and hence that the court below erred in granting the defendant’s motion for summary judgment.
The defendant’s guard at its gate did not tell the decedent that he was required to sign an agreement waiving any right of action he might acquire in the future as a result of the negligence of the defendant or its employees. He was told only that he would have to make out a pass before he was allowed to enter the building and handed a card marked on one part Pass and on the other part Waiver and told to sign both parts. The guard’s description of the card was only partially true, and may have misled the plaintiff’s decedent into believing that all he was signing was a pass. This, under the Massachusetts cases to be considered presently, is enough to warrant a finding of fraud rendering the waiver of liability voidable even though the decedent would have discovered that he was signing a waiver as well as a pass had he taken the trouble to read the documents he signed.
The plaintiff in Barrett v. Conragan, 1938, 302 Mass. 33,18 N.E.2d 369, 370, to which we have already referred, went to a beauty shop for a treatment, as she had done several times before, and as she entered she was handed a card to sign by an employee of the defendant with the statement, which may well have been partly true: “We want names and addresses of any customers and we keep a record of names and addresses of our customers.” The plaintiff signed the card without reading it as she had done on her previous visits to the defendant’s establishment. In fact the card was a general release of liability which the defendant pleaded in defense of a tort action brought by the plaintiff to recover for alleged personal injuries caused by the negligence of the defendant’s operative. The court said that the mere fact that the plaintiff signed the card without reading it and that the defendant’s employee did not read it to her afforded no basis for the plaintiff’s later avoidance of the waiver of liability. But the court said that the “evidence here went beyond that” in that it warranted (1) finding that the defendant’s agent made a material statement as to the effect and purpose of signing the card which was false, (2) finding that the false statement was made to induce the plaintiff to sign and (3) finding that the false statement did in fact induce the plaintiff to sign. On this evidence the court said: “It could not rightly have been ruled as matter of law that the plaintiff was negligent in relying on the representation as to the effect of signing the card. * * * The question whether there was fraud in the obtaining of the plaintiff’s signature was one of fact.”
The facts in King v. Motor Mart Garage, 1957, 336 Mass. 422, 146 N.E.2d 365, 366, are essentially similar. The plaintiff in that case took her car to the defendant’s garage for storage and notified the attendant that there was valuable personal property in it. She was assured that her property was entirely safe and as she backed her car into a stall she was handed a card to sign by the attendant who said, and it may well have , been partly true: “We have to have a record of all locked cars.” She signed the card without reading it, only to discover when she brought suit to recover for the loss of her personal property that she had actually signed a release of liability for the loss of all the personal property left in her car. The case was referred to an auditor who found that the plaintiff’s loss was caused by the negligence of the defendant’s employees, that the plaintiff was induced to sign the release by the misrepresentation of the defendant’s employee as to its nature, and “that her signature thereon was obtained by fraud.” The court overruled exceptions to rulings for the plaintiff based on these findings saying in summary: “As to the release, it is settled that it was voidable if it was obtained by fraudulent misrepresentation as to its contents, in circumstances where the party signing it did so without reading it, relying on that misrepresentation.”
The facts in the case at bar closely parallel the facts in the two cases discussed above. On their authority we think the District Court erred in granting the defendant’s motion for summary judgment. That is to say, under, Massachusetts law as expounded in the cases to which we have referred the facts in the case before us present a genuine issue as to a material fact, i. e., whether the decedent’s signature to the waiver of liability was procured by the fraudulent misstatement of the defendant’s guard as to the nature of the instrument he directed the decedent to sign. The case must therefore be remanded for trial of that issue.
Judgment will be entered vacating the judgment of the District Court and remanding the case to that Court for further proceedings consistent with this opinion.
. “Form 1042 Revised No. FD 24883
“Waiver
“In consideration of Ford Motor Company granting permission to enter its plant and properties, I hereby waive all claims for damage or loss to my person and property which may bo caused by any act, or failure to act, of Ford Motor Company, its officers, agents or employees.
“I assume the risk of all dangerous conditions in and about said plant property and waive any and all specific notice of the existence of such conditions.
“I further release Ford Motor Company from all claims for damage or loss to my person or property which I may receive while exercising this license.
“It is further agreed that this license may be cancelled at any time without notice and that I will abide by all applicable Company rules and regulations.
“I Have Read the Above and Agree to game:
“Signature: John Schell Address: 231 Park Dr.
City: Boston State: Mass. Representing: Hass & Co.
“Date: Oct. 11, (sic) ’54”
. On suggestion of death the present plaintiff was substituted for her intestate.
. For holdings in similar vein but on dissimilar facts see: Shaw v. Victoria Coach Line, Inc., 1943, 314 Mass. 262, 50 N.E.2d 27; Yorke v. Taylor, 1955, 332 Mass. 368, 124 N.E.2d 912.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_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".
In re HOLLINS & ARROUSEZ ELECTRIC & ENGINEERING CO. ALLIS-CHALMERS MFG. CO. v. MOORE et al.
Circuit Court of Appeals, Ninth Circuit.
February 25, 1929.
No. 5644.
Ray Howard and A. S. Gold, both of Los Angeles, Cal. (Nathan Silk, of Los Angeles, Cal., of counsel),.for appellant.
Rupert B. Turnbull, of Los Angeles, Cal., for appellees.
Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge.
BEAN, District Judge.
This is a proceeding by the Allis-Chalmers Manufacturing Company to recover possession or impress an equitable lien on the assets of the bankrupt firm of Hollins & Arrousez Electric & Engineering Company.
Por some time prior to September 22, 1926, the bankrupt had been engaged in the business of manufacturing, buying, selling, and renting electrical machines and equipment, and in the production and sale of moving pictures. On September 22, 1926, they made a general assignment for the benefit of creditors, and were adjudged bankrupts on January 24, 1927. Por some time prior to the assignment they had been buying electrical machines of the petitioner, and, after making certain additions thereto, reselling them to the general public. There are six sets of such machines or appliances involved in this controversy. Pive of them were sold by the petitioner to the bankrupt at divers times between December 28, 1925, and May 2,1926, on conditional sales contracts, by the terms of which the vendor retained the title until the evidence of indebtedness given in part payment was paid in full. The other set, referred to in the record as the Cohn set, was shipped by the petitioner from its factory at Milwaukee, Wis., to the bankrupt at Los Angeles, and received by them some time prior to July, 1926.
On July 29 of that year a proposed contract for this machine, similar in terms to that covering the other machines, was offered the bankrupt by the local representative of the petitioner, and accepted by them, but it was not approved by the home office at Milwaukee. In the meantime the bankrupt, after mounting the machine on a trailer and adding other electrical equipment thereto, sold the complete machine, receiving about $19,-000 therefor, which amount was deposited by them to their credit in their general banking account and used by them in the general conduct of their business prior to the making of the assignment in September of 1926. There is no evidence that any part of such amount or the proceeds thereof were in the bankrupt’s estate at the time of the adjudication, or that such estate is enhanced thereby. The bankrupt, with the consent and approval of the petitioner, sold the other five sets, without having first paid the purchase price thereof, to various parties taking conditional sales contracts in their own names, similar in form to that between the petitioner and the bankrupt, receiving from the purchasers (except Cecil B. Mille Company, corporation) cash or commercial paper payable to them for the deferred payments, and the cash and the proceeds from the commercial paper, which they discounted, deposited by the bankrupt in their general banking account, and used by them in the conduct of their business prior to September, 1926. The sale to the Ceeil B. Mille Company was made in March, 1926, and the bankrupt received, as part of the purchase price, machinery or applicances of the approximate value of $6,000. The petitioner, however, permitted this machinery to remain in the possession of the bankrupt, and to be treated by them as their property, and it passed to the creditors' committee under the assignment in September, 1926. At the time of the adjudication the bankrupt was indebted in excess of $400,000 and had assets of the value of less than $100,000.
The special master and the court held that under these facts the petitioner was not entitled to any part of the assets of the bankrupt or an equitable lien thereon, and hence this appeal.
The petitioner claims that the amounts received by the bankrupt for the sale of the property in question was in the nature of a trust fund, and received for the use and benefit of the petitioner. It therefore invokes the general rule that, where property has been wrongfully obtained or applied, a court of equity will intervene to secure it to the owner, if it can be identified or traced into any other shape, by holding it to be his property or giving him a lien thereon. Central Nat. Bank v. Connecticut Mut. L. Ins. Co., 104 U. S. 56, 26 L. Ed. 693; In re Dunn & Co. (D. C.) 193 F. 212. But, assuming that the vendee of property under a conditional sales contract who sells it without the' consent of the owner and before paying the purchase price, or one who wrongfully converts the property of another by selling it, receives the proceeds thereof in trust for the owner, the rule invoked by the petitioner has no application to the facts of the instant ease. The five sets were sold by the bankrupt and the proceeds received and used by them as their own property, with the knowledge, consent, and approval of the petitioner, for the reason, as the agent testified, that he considered the bankrupt “then in good financial condition,” and therefore did not take an assignment of the contracts from the purchasers, although the bankrupt was ready and willing to make sueh assignment. The petitioner therefore waived any right which it might have to, or lien on, the proceeds received by the bankrupt from the sale of the five sets, and at the time of the adjudication stood in the position of a creditor of the bankrupt for the amount remaining .due on the original contract between it and the bankrupt.
It is true the agent testified that it was the understanding between him and the bankrupt at the time the sales were made that the proceeds should be held by the bankrupt for the petitioner, but this is. wholly inconsistent with the acts of the parties, and, if there was such an agreement, it was clearly waived or abrogated by their subsequent conduct.
There is no evidence that any part of the money received by the bankrupt from the sale of the Cohn set, or the proceeds thereof, was a part of the assets of the bankrupt at the time of the adjudication, either in specie or in changed form. It may be that, when trust funds are wrongfully mingled by the trustee with his own, a court of equity will, for the purpose of doing justice under circumstances not here present, treat the whole as a trust fund, and intervene to protect the owner by giving him a lien on the entire fund, if the trust fund can be traced into it, but the burden of- proof is upon the one claiming such a right, and, if he is unable to identify the funds as representing the proceeds of his property, his claim must fail. First Nat. Bank of Princeton v. Littlefield, 226 U. S. 110, 33 S. Ct. 78, 57 L. Ed. 145; Schuyler v. Littlefield, 232 U. S. 707, 34 S. Ct. 466, 58 L. Ed. 806; Bogert on Trust, p. 521. Such a lien cannot be impressed on property which is not shown to have been enhanced or augmented by the unlawful application. 37 C. J. 320.
Affirmed.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Carrie L. CHANDLER, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Defendant-Appellee.
No. 738, Docket 84-2322.
United States Court of Appeals, Second Circuit.
Submitted April 8, 1985.
Decided May 30, 1985.
Carrie L. Chandler, pro se.
Robert Abrams, Atty. Gen., State of N.Y., New York City (Howard L. Zwickel, Marla Tepper, Asst. Attys. Gen., New York City on brief), for defendant-appellee.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
KEARSE, Circuit Judge:
Plaintiff pro se Carrie L. Chandler appeals from a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, dismissing her complaint pursuant to 42 U.S.C. § 1983 (1982) seeking declaratory and injunctive relief against defendant Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services (hereinafter the “State”) on the ground that a State regulation limiting the amount of postage that the State will pay for an inmate in any of its correctional institutions unduly restricts the inmates’ access to the courts. The district court dismissed the complaint for failure to state a claim upon which relief may be granted, finding that the limitation was facially reasonable because the State (a) allows inmates to send additional mail at their own expense and (b) in its discretion, may advance inmates credit to send mail in excess of that paid for by the State if they lack the funds to pay such excess postage. On appeal, Chandler contends that the authority relied on by the district court was inapposite and that at least an evidentiary hearing should have been held as to the reasonableness of the limitation and the facts as to the State’s exercise of its discretion. We agree that the court did not properly dismiss the complaint for failure to state a claim and we therefore vacate and remand for further proceedings.
I. Background
According to the complaint, filed on behalf of all indigent inmates of New York State correctional institutions who wish to file papers in a court, Chandler was convicted of crimes in state court in 1981 and was given leave by the Appellate Division of the State Supreme Court to appeal in forma pauperis. She was required to file with that court eight copies of her brief on appeal and the transcript of the lower court proceedings. In August 1983, Chandler, then an inmate at the Bedford Hills Correctional Facility (“BHCF”), attempted unsuccessfully to mail these documents at the expense of the State. Pursuant to State policy, she was required to pay the postage of approximately $12 out of her own funds; she had at that time less than $60 in her BHCF institutional account. In January 1984, Chandler prepared a reply brief on her appeal, which she was required to mail at her own expense at a time when she had less than $10 in her BHCF account. She alleged that she anticipated further mailings in pursuit of her state appeal for which the State, pursuant to its policies, would refuse to pay postage.
Chandler alleged that she had filed a petition for habeas corpus in the district court in December 1983 asserting that she had been denied a fair trial in state court and that she anticipated having to make further mailings in support of that petition. She alleged that she also had prepared two actions to be filed in federal court pursuant to 42 U.S.C. § 1983 but that she would be unable to file the required seven copies of her complaints because she would not be able to afford the postage. She alleged that she had been able to file certain papers with the federal court only because other more affluent inmates had lent her money for postage.
The complaint alleged that the State’s refusal to pay for Chandler’s postage was based on its Department of Correctional Services Directive 4422 entitled “INMATE CORRESPONDENCE PROGRAM” (“Directive 4422”). Paragraph III.D.l. of Directive 4422 limits the amount of free postage to be provided by the State to five one-ounce letters per week; 11 III.D.3. states that the State will not provide free postage for legal briefs:
1. The Department will provide free regular first class postage for five letters of one ounce or less per letter per week to all inmates____ Inmates may send more than five letters a week, but will be required to pay postage for all correspondence in excess of five letters in any week. Inmates may not accumulate credit for unused postage.
3. All postage for items such as packages, legal briefs, letters in excess of one ounce, or any other form not covered by Item 1 will be sent at the expense of the inmate____
Quoting the statement of the United States Supreme Court in Bounds v. Smith, 430 U.S. 817, 824-25, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977), that “[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them,” the complaint asserted that the State had wrongfully refused to pay the postage for Chandler’s state court appeal and that its continued refusal to pay postage would result in a deprivation of her access to the federal court, in violation of her due process right to such access. Chandler moved for a preliminary injunction to prohibit the State from persisting in its refusal.
The State filed an answer in which it asserted, inter alia, that the complaint failed to state a claim upon which relief may be granted, and it opposed the motion for a preliminary injunction on grounds stated in an affidavit and a memorandum of law. The State’s affidavit of Assistant Attorney General Marla Tepper (“Tepper Affidavit”) submitted a copy of Directive 4422 and stated in addition that inmates having insufficient funds to pay postage for legal mail could request an advance in order to mail such documents:
4. Upon information and belief, if an inmate has insufficient funds to mail legal correspondence, the inmate may request an advance. I have spoken to personnel at the facility who informed me that plaintiff presently has a negative balance in her account reflecting that advances have been made to her, albeit not necessarily for legal mail. If plaintiff chooses, she may make a request for an advance for postage and the facility will determine whether she is eligible for an advance based on her spending patterns and the responsibility she has demonstrated with regard to advances.
The district court denied Chandler’s motion for a preliminary injunction and dismissed the complaint for failure to state a claim, on the ground that the State’s limitations, including its discretionary granting of advances, were facially reasonable. The court’s Memorandum and Order, dated September 19, 1984, read as follows:
Plaintiff’s motion for a preliminary injunction docketed June 29,1984 is denied, and the complaint dismissed for failure to state a claim.
An inmate of the New York State correctional system, plaintiff is entitled to a free postage allotment from the state which permits the mailing of five letters per week. She is required under regulations of the Department of Correctional Services (“DOCS”) to pay the actual postage rates imposed by the U.S. Postal Service, for items of mail in excess of that number, and individual items weighing more than one ounce. Such excess postage is charged to her inmate account. Authority and discretion exists [sic] at the institution to advance postage even where there is a negative balance in the inmate’s account, where undue hardship would ensue.
Plaintiff alleges in this action pursuant to 42 U.S.C. § 1983 that the procedure followed with respect to free mail violates her right of unlimited access to the federal courts, assured by the Constitution. The argument is frivolous and trivializes the Constitution. The amount of free postage paid for by the State is facially reasonable; a vast amount of litigation could be conducted with five first class letters per week. See generally, Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir.1974), finding a similar regulation to be reasonable.
The Clerk shall enter a final judgment dismissing the action.
On appeal, Chandler contends that (1) five one-ounce letters per week is insufficient to provide adequate access to the courts, (2) the requirements of due process are not satisfied by the State’s discretionary practice of sometimes advancing postage for legal mail, (3) Bach v. Coughlin is readily distinguishable from the present case, and (4) the district court erred in dismissing the complaint without an evidentiary hearing. We agree with plaintiff’s last two points and remand to the district court for consideration of the first two.
II. Discussion
We have several difficulties, procedural and substantive, with the district court’s dismissal of Chandler’s complaint.
A. Procedure
First, Fed.R.Civ.P. 12(b)(6) provides that if the court wishes to consider matters outside the complaint in ruling on a motion to dismiss for failure to state a claim, it must treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 and give the nonmoving party an opportunity to present evidence in opposition to the motion. See, e.g., Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985); Grand Union Co. v. Cord Meyer Development Corp., 735 F.2d 714, 716-17 (2d Cir.1984) (per curiam). Here, although the district court stated that it was dismissing the complaint for failure to state a claim, it relied on information presented only in the Tepper Affidavit, basing its dismissal in large part on the existence of the correctional authorities’ “discretion ... to advance postage even where there is a negative balance in the inmate’s account, where undue hardship would ensue.”
The Tepper Affidavit was submitted to the court in support of the State’s opposition to Chandler’s motion for a preliminary injunction, and Chandler responded to it on that basis. There is no indication in the record, however, that the court advised Chandler that it would accept as true the statements set forth in the Tepper Affidavit in ruling on the motion to dismiss the complaint. Thus, we conclude that Chandler was denied the opportunity to present controverting or enlightening evidence as to the State’s exercise of its discretion— perhaps to submit affidavits of other indigent inmates that might show the existence of a genuine issue of fact as to whether they have arbitrarily been denied advances for the mailing of legal materials to the courts.
Second, the Tepper Affidavit is at once second-hand and factually sparse, and had the State formally moved for summary judgment, the affidavit should not have been deemed sufficient to warrant the granting of that motion. Rule 56(e) provides that
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The Tepper Affidavit’s description of the State’s discretion to grant an inmate an advance for postage, set forth in full in Part I above, was stated to be “[u]pon information and belief” and appears to contain no first-hand information. It did not comply with Rule 56(e).
Further, even if the Tepper Affidavit had been based on Tepper’s first-hand knowledge, its substance would not justify the entry of summary judgment. As discussed in Part II.B. below, there is no indication of the rationale for some of Directive 4422’s restrictiveness. Further, the Affidavit’s only suggestion that the State has formulated any guidelines to inform the exercise of its discretion to make advances is the bare statement that “the facility will determine whether [an inmate] is eligible for an advance based on her spending patterns and the responsibility she has demonstrated with regard to advances.” This statement provides insufficient substance or information to permit us to infer whether the State’s discretion is exercised reasonably or arbitrarily. Though the Memorandum and Order of the district court seems to suggest that the State’s discretion is exercised to grant the inmate an advance “where undue hardship would ensue,” that suggestion goes beyond what is found in the Tepper Affidavit.
B. Due Process
As a matter of due process, prisoners must be afforded access to the courts “in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974); see Johnson v. Avery, 393 U.S. 483, 485-87, 89 S.Ct. 747, 748-749, 21 L.Ed.2d 718 (1969). “Regulations and practices that unjustifiably obstruct ... the right of access to the courts are invalid.” Procunier v. Martinez, 416 U.S. at 419, 94 S.Ct. at 1814. In Bounds v. Smith, the Supreme Court, in considering to what extent the State was required to provide inmates with law libraries, stated that “[t]he inquiry is ... whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts,” 430 U.S. at 825, 97 S.Ct. at 1496, and observed that “ ‘meaningful access’ to the courts is the touchstone,” id. at 823, 97 S.Ct. at 1495 (quoting Ross v. Moffitt, 417 U.S. 600, 611, 612, 615, 94 S.Ct. 2437, 2444, 2446, 41 L.Ed.2d 341 (1974)).
In its opinion in Bounds, the Court also stated that “[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents ... and with stamps to mail them.” 430 U.S. at 824-25, 97 S.Ct. at 1496. Although this statement itself was unqualified, we do not read it as requiring that the indigent inmate be provided unlimited free postage, but only that he not be denied “a reasonably adequate” (id. at 825, 97 S.Ct. at 1496) amount of postage to present his claimed violations of fundamental constitutional rights to the courts. Accord Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978) (per curiam); Guajardo v. Estelle, 580 F.2d 748, 762-63 (5th Cir.1978); Bach v. Coughlin, 508 F.2d at 307. Thus, a state is entitled to adopt reasonable postage regulations in light of, for example, prison budgetary considerations. Id. at 307-08; cf. Bounds v. Smith, 430 U.S. at 825, 97 S.Ct. at 1496 (Court’s determination that adequate library facilities must be provided was “not to say that economic factors may not be considered ... in choosing the methods used to provide meaningful access”).
The question here is whether the restrictions imposed by the State’s Directive 4422 are reasonable. The district court found Directive 4422 “facially reasonable,” citing its similarity to the regulation found reasonable in Bach v. Coughlin. Although Directive 4422 is in some respects similar to the regulation in Bach, the differences are sufficiently great that the decision in Bach cannot justify a judgment of dismissal as a matter of law here. In Bach, the regulation at issue not only provided that the inmate could send at state expense three one-ounce letters per week to legislative officials or to his attorneys, it also “provided free and unlimited postage for correspondence with federal and state courts and the Department of Corrections.” Id. at 307. In the present ease, in contrast, Directive 4422 expressly provides, inter alia, that the State will not pay postage for any legal briefs. The approval of a regulation that expressly provides that the State will provide postage for communications to the courts hardly seems adequate precedent for the approval of a regulation that expressly provides that the State will not provide postage for legal briefs.
Indeed, we think Directive 4422 on its face raises questions as to the State’s regulation. If the restrictions set forth in Directive 4422 are based on budgetary constraints, it is not apparent why an inmate may send five one-ounce letters per week at state expense but may not accumulate credit for unused postage or send one five-ounce document in a week in which he mails nothing else. If there is some other rationale for this restriction, there is no indication of it in the record. The record is also silent as to any rational basis for the blanket refusal to pay postage for any legal brief, even one that weighs less than one ounce. Further, the Directive provides that although the State will pay postage for five one-ounce “letters” per week, it will not pay postage for items in “any other form.” Thus, if a one-ounce motion addressed to a court were presented for mailing, it appears that the State would refuse to pay postage for it because it is not in the form of a letter. Such a formal distinction seems on its face arbitrary. We doubt that these questions as to the reasonableness of Directive 4422 are susceptible to resolution against the plaintiff on summary judgment, and they are among those that remain to be answered.
Conclusion
The judgment of the district court dismissing the complaint is vacated and the matter is remanded for further proceedings not inconsistent with this opinion. Costs to appellant.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_genapel1
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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 first listed appellant.
PLUNKETT v. COMMISSIONER OF INTERNAL REVENUE.
No. 3635.
Circuit Court of Appeals, First Circuit.
April 2, 1941.
Bennett Sanderson, of Boston, Mass. (Harold E. Magnuson, and Hale, Sander-son, Byrnes & Morton, all of Boston, Mass., on the brief), for petitioner for review.
Lee A. Jackson, ,Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, and Newton K. Fox, Sp. Assts. to Atty Gen., on the brief), for Commissioner.
Before MAGRUDER and MAHONEY, Circuit Judges, and SWEENEY, District Judge.
MAHONEY, Circuit Judge.
This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the sum of $13,890.93 in the petitioner’s income tax for the year 1934, under Sections 161 and 163- of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 725, and a deficiency in penalty imposed by Section 291 of said Act, 26 U.S.C.A. Int. Rev.Acts, page 750, in the sum of $3,472.73.
The petitioner is the life beneficiary of a testamentary trust, which originally consisted, besides other property, of shares of the capital stock of the Berkshire Cotton Manufacturing Company, of Adams, Massachusetts, and shares of the Greylock Mills of North Adams, Massachusetts, appraised by the Probate Court at $547,500. Under the terms of the trust, the Old Colony Trust Company, Trustee, was directed to keep the stock as a permanent investment, and it was authorized, if 'in its judgment it was deemed advisable, to invest and reinvest the same, but only in sound securities with a low rate of interest. The income was payable to the petitioner for his life. In violation of its trust, the trustee exchanged these shares for shares of Berkshire Fine Spinning Associates, Inc. No dividends were paid on the common stock of Berkshire Fine Spinning Associates, Inc. after March 1, 1930, and no dividends were paid on the preferred stock after September 1, 1930.
In January, 1932, the petitioner objected to the allowance of the trustee’s ninth, tenth and eleventh accounts, which had been filed in the Probate. Court of Berkshire County, particularly with respect to the investment in shares of the Berkshire Fine Spinning Associates, Inc.' It was ordered by the Probate Court that this item be disallowed and in place thereof the accountant was ordered to insert the item “Cash $547,500”, and as so amended the account was allowed. The trustee appealed from this decree to the Supreme-Judicial Court of Massachusetts. Later this appeal was withdrawn and an agreement filed in the said court. Under the terms of the agreement the trustee replaced $500,000 cash in the trust in substitution for the preferred and common stock of the Berkshire Fine Spinning Associates, Inc., and resigned as trustee. Later the Agricultural National Bank of Boston, Massachusetts, was appointed trustee and received from its predecessor the assets of the trust including the $500,000 cash.
On October 9, 1934, the petitioner filed a petition with the Probate Court for Berkshire County, in which he made reference to the $500,000 which had been received from the Old Colony Trust Company, Trustee, and listed in its last account as principal, stating that the “moneys so included in said account are principal in part only and also include income or money in lieu of income”. He prayed the court to authorize the present trustee to withdraw from the said $500,000 the amount which would have accrued as income had the trust property been properly invested “during the four years and seven months last past” and to allocate the said amount to income in order that it might be paid forthwith to the petitioner as life tenant of the trust fund. On the same day the court ordered the trustee to allocate the sum of $70,000 to income from the $500,000 so accounted for and to pay it forthwith to the petitioner as life tenant of the trust. Accordingly, the trustee paid to the petitioner $66,000 in 1934 and the balance of $4000 in 1935. Under the order of the Probate Court, the petitioner had the right to receive the $70,000 forthwith, and no question is now raised about the fact that a part of it was paid in 1934 and the balance in 1935.
The Agricultural National Bank, trustee, filed fiduciary and individual returns for the year 1934," in which the $500,000 cash item was treated as a net capital gain transaction. Thus, the difference between the $500,000 returned to the trust and the value of the securities at the date of the death of the settlor, was taxed as a long term capital gain under Section’117 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 707, and not as ordinary income. Accordingly, no deduction of any part of the $70,000 was made by the trustee on the returns as income distributable to the petitioner. These returns for 1934 reported income distributable to the petitioner of $2,805.53, representing the balance of net income of the trust, and $286.11 interest received from state and federal obligations exempt from income tax. The entire returns for the trust reported a net loss and thus no tax liability.
On examination of the returns, the respondent, the Commissioner of Internal Revenue, determined that certain readjustments should be made in the returns so that a net taxable income resulted. A deficiency tax was assessed which the trustee paid. In the readjustment, the respondent did not make any deduction of any part of the $70,000 distributed to the petitioner.
The petitioner’s return for 1934 was upon a cash receipts and disbursements basis. He reported among other items the income shown on the books of account of the trustee as distributable, namely $2,805.53. He did not report as income the receipt of the $70,000 paid by order of the Probate Court. He placed this return in an envelope addressed to the Collector of Internal Revenue at Boston and mailed it from Adams, Massachusetts, on Friday, March 15, 1935, and enclosed his check for the tax stated in his return, namely, $40.19. Through inadvertence the return was not signed by the petitioner or verified. It was noted as received by the Collector at Boston on Monday, March 18, 1935.
In July, 1935, the Collector wrote asking the petitioner why his return was delinquent. The petitioner answered that he was positive that his return was filed or rather in the mail as required by the Revenue Act of 1934, and any delinquency in filing his return was not due to any wilful intent to avoid compliance with the Revenue Act and was not intentional. Nothing was stated by the Collector which would indicate to the petitioner that his return had been unsigned and unverified.
On April 21, 1936, the amount of tax paid by the petitioner together with interest was refunded because he had reported an excess tax liability due to the fact that he had included as taxable income salary received as a state senator. Still the petitioner was given no notice that his return was deficient for lack of signature or verification.
On March 5, 1938, after an examination of the petitioner’s return for 1934 and a conference thereon, the respondent advised the trustee of the reversal of his prior readjustment of the latter’s returns and suggested that the trustee file a claim for refund for the tax paid. Simply to protect its rights, the trustee did so. The respondent has withheld action on the claim pending the outcome of the present proceedings.
On March 5, 1938, the Commissioner sent out the deficiency notice involved in this cause, and also gave notice of a 25 percent penalty for failure to file within the time prescribed by law a return properly signed and verified. The petition to review this determination of the Commissioner was filed with the Board on June 1, 1938, and, on advice of counsel, the petitioner filed á signed and verified return for 1934 on October 10, 1938.
The Board of Tax Appeals held that the $70,000 was taxable income of the petitioner for the year 1934, and approved the imposition of the 25 percent penalty for delinquency in failing to file a proper return. The petitioner has appealed.
The first question before us is whether the petitioner is liable to income tax upon the $70,000 which the Probate Court ordered the trustee to pay to the petitioner, as life beneficiary, out of the $500,000 returned to the trust fund after the former trustee’s breach of trust.
The applicable sections of the Revenue Act of 1934, 48 Stat. 680, 727, 26 U.S.C.A.Int.Rev.Acts, page 659 et seq., applying to trusts are as follows:
Ҥ 161. Imposition of Tax
“(a) Application of Tax. The taxes imposed by this title upon individuals shall apply to the income of estates or of any kind of property held in trust * *
Ҥ 162. Net Income
“The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that— * * *
“(b) There shall be allowed as an additional deduction in -computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries, * * * but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not. * * * ” (Italics supplied.)
The nature and extent of the beneficiary’s interest in the trust are determined by the state law and the decision of a competent state court is conclusive as to the validity of such interest. Blair v. Commissioner, 1937, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465. The right of the beneficiary to the income of the trust is a property right, the extent of which is to be determined by the state court. Freuler v. Helvering, 1934, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634; Commissioner of Internal Revenue v. Dean, 10 Cir., 1939, 102 F.2d 699. Interest' and rights in property are created by state law and the federal revenue acts determine whether such rights are taxable. Morgan v. Commissioner, 1940, 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585. Cf. Lang v. Commissioner, 1938, 304 U.S. 264, 267, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319; Uterhart v. United States, 1916, 240 U.S. 598, 603, 36 S.Ct. 417, 60 L.Ed. 819. It is thus incumbent upon us to determine what the property rights of the petitioner were under state law.
The original trustee mismanaged the trust estate in exchanging the stock of the Berkshire Cotton Manufacturing Company and of the Greylock Mills for stock of the Berkshire Fine Spinning Associates, Inc. The latter stock was not the kind in which the trustee was authorized to invest under the terms of the will, and the action of the trustee in so exchanging these stocks was a breach of trust on its part. This deprived the petitioner of the income from the trust. The Probate Court, which had jurisdiction of the estate, determined that such action on the part of the trustee was a breach of trust and ordered restitution. The $500,000 replaced in the trust was a sum agreed upon for the breach of trust. Under the Massachusetts law, it thereupon became proper for the court to apportion this sum between income and principal so as to determine what portion would have been payable to the petitioner as income had the breach of trust not occurred, and what portion of the sum should remain as principal. Springfield Safe Deposit & Trust Co. v. Wade, 1940, 305 Mass. 36, 24 N.E.2d 764; Edwards v. Edwards, 1903, 183 Mass. 581, 67 N.E. 658; Westcott v. Nickerson, 1876, 120 Mass. 410; cf. Parker v. Winslow, 1820, 16 Mass. 361; Restatement, Trusts, 1935, § 241.
Under the terms of the testamentary trust, the income was payable to the petitioner during his natural life. There was no provision for the payment of any part of the principal to him. But he was entitled to the entire income from the trust fund properly invested. Had the former trustee retained the shares of the Berkshire Cotton Manufacturing Company and the Greylock Mills it would have been accountable to the petitioner only for the income actually earijed. If, on the reorganization of those companies, the former trustee had acted properly and invested the proceeds of these securities in sound securities with a low rate of interest, as allowed by the terms of the will, the petitioner would have been entitled to the actual income earned thereon. However, the former trustee improperly invested in what were not considered by the Probate Court to be such sound securities. The Probate Court ordered it to replace these securities with the sum of $547,500, later changed by agreement to $500,000.
It is obvious that a part of this sum consisted of income for which the former trustee was accountable to the petitioner during the period in which the trust funds were improperly invested. The petition of the petitioner to the Probate Court asking for the apportionment recognized this by stating that “said moneys [the $500,000] so included 'in said account are principal in part only and also include income or money in lieu of income” and by asking the court to order paid to him as life tenant of the trust “the amount which would have accrued as income during the four years and seven months last past”. The Probate Court ordered the payment of $70,000 to the petitioner “it appearing to the Court that the allegations in said petition are true
and that the sum of seventy thousand (70,-000) dollars now included as principal of said trust fund is in fact income”. Cf. Springfield Safe Deposit & Trust Co. v. Wade, supra; Edwards v. Edwards, supra; Westcott v. Nickerson, supra. The $70,000 was paid to the petitioner, as he requested, as the income which would have accrued to him if the trust funds had been properly invested. Since it was distributed to him as income, he cannot escape taxation on it by showing that the fund as invested earned no income. Letts v. Commissioner of Internal Revenue, 9 Cir., 1936, 84 F.2d 760; Abell v. Tait, 4 Cir., 1929, 30 F.2d 54; Baltzell v. Mitchell, 1 Cir., 1925, 3 F.2d 428.
Since the $70,000 was requested by and paid to the petitioner as income, the only thing he was entitled to under the trust, he cannot be heard now to say that it was not income in order to avoid taxation. The $70,000 was distributed by the trustee to the petitioner as income and was properly included in computing his net income as provided in Section 162(b), supra.
As already set forth, by the terms of the will the petitioner’s interest was limited to income from the trust estate. The $70,000 was paid to him as income, the income from the bequest of the trust property which the testator had left to the trustee. To that exent only was he a beneficiary, and the money was paid to him pursuant to the terms of the will as income from the trust. Clearly the payment was not a bequest, devise or inheritance, and the case of Lyeth v. Hoey, 1938, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410, and other cases cited by the petitioner are not applicable.
The final question is whether the Board of Tax Appeals was correct in sustaining the 25 percent delinquency penalty which was imposed by the respondent for failure to file within the time prescribed by law a properly signed and verified return.
The question as to the correctness of the assessment of this penalty has been much obscured by the recital of the actions of the Collector and the respondent after the petitioner mailed his purported return on Friday, March 15, 1935, and the reliance on these actions by the petitioner as in some manner excusing him for not filing a proper return on time. We need not consider whether the mailing of the purported return on Friday, March 15, 1935, would constitute a proper filing of the return under Section 53(a) (l) of the Revenue Act of 1934, supra, 26 U.S.C.A. Int.Rev.Acts, page 683, and Regulations 86 promulgated thereunder. Even if such mailing would constitute a proper filing, the purported return was not “the return required” by Section 51 of the same statute, 26 U.S.C.A.Int.Rev.Acts, page 682, since it was neither signed nor verified. Cf. Lucas v. Pilliod Lumber Co., 1930, 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829, 67 A.L.R. 1350; Uhl Estate Co. v. Commissioner of Internal Revenue, 9 Cir., 1940, 116 F.2d 403. Thus, a proper return was not filed within the time required by the statute.
Section 291 of the Revenue Act of 1934 provides:
“In case of any failure to make and file a return required by this title, within the time prescribed by law or prescribed by the Commissioner in pursuance of law, 25 per centum of the tax shall be added to the tax, except that when a return is filed after such time and it is shown that the failure to file it was due to reasonable cause and not due to willful neglect no such addition shall be made to the tax. * * * ”
We have seen that the “return required by this title” was not filed within the time prescribed by law or by the Commissioner in pursuance of law. If no such return was ever made the 25 percent penalty is mandatory. Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206, 215; Helvering v. Boekman, 2 Cir., 1939, 107 F.2d 388, 389, 390. If such return was filed after the time prescribed by law the penalty is mandatory unless it is shown “that the failure to file it was due to reasonable cause and not due to willful neglect”. Sabatini v. Commissioner of Internal Revenue, 2 Cir., 1938, 98 F.2d 753, 756. In this case it can make no difference since even if the properly executed return filed October 10, 1938, can be considered as a proper return filed after the time required by law, the petitioner made absolutely no showing that the failure to file a properly executed return within the time required by law was due to reasonable cause.
The petitioner apparently maintains several positions. He seems to feel that by returning to him the tax paid under the purported return mailed on March 15, 1935, on the ground that he had erroneously reported exempt income, the Collector waived the flaws in the return and treated it as though it were a proper return timely filed. Assuming but not deciding that the purported return was mailed in time to constitute filing, no officers of the United States had power to waive the defects in the return. Lucas v. Pilliod Lumber Co., supra. Thus, the purported return mailed on March 15, 1935, could not be considered the proper return.
Nor do we believe that the return of October 10, 1938, can be considered a proper, though tardy, return. It was filed long after this suit was commenced. If such a practice were permitted, a taxpayer could file no return, and then, if such failure were detected and suit brought, he could file a properly executed return, and, by showing reasonable cause for not filing it before the proper date, avoid any penalty. Such a construction would put a premium on evasion, particularly where a taxpayer had reasonable cause for failing to file on time. Cf. Taylor Securities, Inc., 1939, 40 B.T.A. 696, 703, 704.
Even if the return filed on October 10, 1938, be considered a proper return for 1934 filed after the time required by law, the penalty must still be imposed on the entire deficiency. The petitioner presented absolutely no evidence why the return mailed on March 15, 1935, was not properly executed. He, therefore, did not bear the burden of showing that his failure to file a proper return in the time required by law was due to reasonable cause. Cf. Berlin v. Commissioner of Internal Revenue, 2 Cir., 1932, 59 F.2d 996, certiorari denied, 1932, 287 U.S. 642, 53 S. Ct. 90, 77 L.Ed. 555. That the failure was due to inadvertence does not relieve the petitioner from the imposition of the penalty. The penalty is not primarily punitive in nature, but is an attempt to protect the revenue. See, Helvering v. Mitchell, 1938, 303 U.S. 391, 401, 58 S.Ct. 630, 82 L.Ed. 917. In order to escape the penalty, the petitioner must show reasonable cause for his failure to file a proper return; inadvertence is not sufficient.
However, the petitioner claims that the government officials misled him by not informing him that his return was improperly executed, and by making him believe his return was acceptable by remitting his tax,, on the ground that his return showed no taxable income, thus causing him not to file a properly executed return long before he did. It is not clear whether the petitioner feels that these actions by the taxing officials provide the reasonable cause for failure to file the proper return on time or whether it is his contention that if he had filed a properly executed return sometime after March 15, 1935, the penalty would have attached only to the income reported in that return and not to the subsequently determined deficiency here in suit. Neither position is tenable.
As to the first suggestion, what must be shown is reasonable cause why a properly executed return was not filed on or before March 15, 1935. If no reasonable cause is shown why the proper return was not filed on or before that date the penalty must be imposed, regardless of how many good reasons there may be why it was not filed soon after that date. Once that date has passed with no reasonable cause being shown why a proper return was not then filed, it matters not at all how soon or how late the return is filed. Thereafter the penalty will apply regardless.
The only other possible ground for avoiding the penalty is the argument that if the petitioner had earlier filed a properly executed return for 1934 the penalty would have applied only to the tax reported as due in that return and not to the subsequently determined deficiency. Apparently, the return filed October 10, 1938, showed no tax owing. Thus, if the petitioner is right, there can be no penalty since the argument is that it cannot attach to the subsequent deficiency. Cf. Robert Hughes & Co. v. Commissioner of Internal Revenue, 8 Cir., 1940, 109 F.2d 720.
It is true that if a properly executed return be filed within the time prescribed by law, though it be incorrect as to the amount of taxable income, there can be no penalty for failure to file a return under Section 291 of the Revenue Act of 1934. When a deficiency is assessed, no penalties can be imposed unless any part of the deficiency is due to negligence or fraud, as provided in Section 293 of the statute, 26 U.S.C.A. Int.Rev.Acts, page 751. ” In other words, a taxpayer who filed a properly executed return within the time prescribed by law will not be penalized if the tax shown by the return as owing is incorrect unless he is guilty of negligence or fraud. His return is proper, even though incorrect; he need not be correct at his peril.
The situation of a taxpayer who does not file a properly executed return within the time prescribed by law is not as favorable. Section 291 provides that in that situation “25 per centum of the tax shall be added to the tax”. (Italics supplied.) In the absence of any language showing that the words “the tax” mean the tax reported in a return filed after the time prescribed by law,' the section must be construed as meaning the correct tax. American Milk Products Corporation v. United States, Ct.Cl. 1930, 41 F.2d 966. This is the only practical construction. Any other would open the door to fraud and evasion of the penalty.
Thus a taxpayer who fails to file a properly executed return within the time prescribed by law is penalized 25 percent of the correct tax ultimately found owing. He has no right to file a tardy properly executed return incorrect as to amount and take the penalty only upon the tax reported due therein. So even if the taxing officials did mislead the petitioner into failing to. file sooner the properly executed return finally filed on October 10, 1938, it did not harm the petitioner. Since he had no reasonable cause for his original failure to file a properly executed return on time, he was liable to a penalty of 25 percent on the correct tax ultimately found to be due.
The deficiency was properly determined and the penalty correctly imposed.
The decision of the Board of Tax Appeals is affirmed.
Ҥ 53. Time and Place for Piling Returns
“(a) Time for Piling—
“(1) General rule. Returns made on the basis of the calendar year shall be made on or before the 15th day of March following the close of the calendar year. * * * »
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Barbara CAMPBELL, Plaintiff-Appellant, v. Peter OLIVA, M.D., Defendant-Appellee.
No. 19810.
United States Court of Appeals, Sixth Circuit.
April 22, 1970.
N. Eugene Worthington, Madisonville, Tenn., J. D. Lee, Madisonville, Tenn., Charles R. Terry, Morristown, Tenn., on the brief, for appellant; Reed & Terry, Morristown, Tenn., of counsel.
C. T. Herndon, III, Johnson City, Tenn., J. Paul Coleman, C. T. Herndon, III, Johnson City, Tenn., on the brief, for appellee; Simmonds, Herndon, Johnson & Coleman, Johnson City, Tenn., of counsel.
Before WEICK and EDWARDS, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
WEICK, Circuit Judge.
The only question in this appeal is whether the District Court erred in granting defendant’s motion for a directed verdict, made at the close of all of the evidence.
The suit was against a plastic surgeon for damages for malpractice in his diagnosis, treatment and surgei’y of plaintiff’s jaw. Jurisdiction was based on diversity of citizenship.
The substantive issues of this case are governed by Tennessee law. The procedural issues are controlled by Federal law. In the Federal Courts, factual issues are decided by the jury and not by the Court. Byrd v. Blue Ridge Rural Elec. Co-Op., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).
In the consideration of a motion for a directed verdict made by the defendant at the close of all the evidence, the Court is required to view the evidence, as well as all inferences properly deducible therefrom, in the light most favorable to the plaintiff. Taylor v. Cirino, 321 F.2d 279 (6th Cir. 1963).
The Supreme Court of Tennessee, in construing Art. VI § 9 of the Tennessee Constitution, held that it “was intended to preserve to the jury ‘the right to determine what facts are proved in a cause.’ Ivey v. Hodges, 23 Tenn. (4 Humph.) 154, 155.” Haskins v. Howard, 159 Tenn. 86, 97, 16 S.W.2d 20, 23 (1929).
In Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891), it was held:
“For the Court to direct the jury to return a verdict in favor of either party, where there is any conflict in the evidence, is an invasion of the province of the jury by the Court, for which the ease will be reversed.” (Italics ours) (Syl. 4)
The plaintiff, Barbara Campbell, was a minor, who, with her husband, was attending East Tennessee State University at Johnson City, Tennessee. On September 20, 1967, while frolicking with her husband, she received an accidental blow on the left side of her face. Numbness developed for a short time. Six days later she awoke with pain in her left jaw. She consulted Dr. Burgin Dossett, Jr., an internist at the University Clinic. Dr. Dossett sent her to Memorial Hospital, where x-ray pictures were taken of her jaw by Dr. J. J. Range, a radiologist, admittedly qualified by education and experience to read and interpret x-ray pictures. Dr. Range interpeted the x-rays and reported them as negative for fractures and reported further that the left temporomandibular joint appeared normal. Dr. Dossett informed Dr. Oliva of this reading.
The pain did not subside. Dr. Dossett was unable to open Barbara’s mouth wide enough to insert a tongue depressor. On October 15th Dr. Dossett referred Barbara to the defendant, Dr. Peter Oliva, who specialized in the practice of plastic surgery, in the area of Johnson City. Until she consulted Dr. Oliva, Barbara had received no treatment by Dr. Dossett except analgesics for pain.
When Barbara consulted Dr. Oliva on October 15th, she handed the x-rays to him, but did not see him examine them. He opened and closed her mouth and asked her when she had pain. He told her she had a fracture of the left con-dyle and that it would have to be repaired by surgery. The following day, October 16th, Oliva saw her again and injected the area of the left condyle with drugs in order to mobilize it. He also inserted a needle in the area by the use of which he claimed to be able to diagnose that there was a fragment, or a fracture, or a detached condyle. The drugs did not alleviate the pain. He testified that he was unable to move the upper joint and could move the lower only half a centimeter. This procedure consumed from thirty to forty minutes.
He testified:
“It was then obvious to us that we had a fracture here, or we had a detached condyle, or we had a fragment that needed to be removed in order to relieve her pain.”
He testified further:
“This is when we informed the patient that she had either a fracture or a chip there and that an operation was going to be needed to explore the area and see what needed to be done.” His interpretation of the x-rays was:
“There was a question, irregularity there, that usually is not present.”
The fact that the doctor did not state which of the three different conditions was obvious to him, and his admission of the question or irregularity in the x-rays, would seem to indicate the necessity of taking additional x-rays before performing the operation. Oliva said that he explained to Barbara what type of operations could be done, depending on what was there. His frequent use of the pronoun “we” throughout his testimony referred to himself, as he alone performed the surgery.
Barbara testified that she “asked him [Oliva] why he knew right away that I had a fracture when at the hospital they said it was not fractured and he said that they didn’t know how to read x-rays at the hospital.”
Barbara further testified that Oliva told her it would be a very minor operation and that she would be up and able to eat within three or four days, and could return to school the following Monday after the operation. He told Barbara and her mother that he would make a small incision on the left side of her face and repair the condyle. Barbara’s mother and husband testified that he told them substantially the same thing. They testified that Oliva did not tell them that he was going to operate on both left and right condyles. But on his own office record, Oliva made a notation on October 16 that if her condition did not improve he “will resort to a bilateral condylectomy.”
Oliva performed the surgery on Barbara on October 26, 1967. He wrote the following findings and procedure in the hospital record:
“This patient had had a blow approximately six weeks prior and has had severe trismus with difficulty TM joint pain.”
Procedure, “Under suitable general anesthetic the patient was prepped and draped in the usual manner. Through a curved incision in the right temporal, the condyle was exposed and the condyle was removed in routine manner. Following adequate repair, the capsule was closed, and routine plastic closure carried out utilizing 4-0 plain and 6-0 nylon. Sterile dressing was applied. The patient tolerated the procedure well and was sent to the recovery room in good condition. This was done bilaterally.” (App. at 248)
The record would seem to indicate that Oliva first repaired the right condyle, which was healthy and actually required no repair work. He then operated on the left, which he thought was fractured, or dislocated, or fragmented. His testimony, however, contradicts the record, for he testified that he operated first on the left condyle.
He testified that the top portion of the left condyle was stuck. He removed the left condyle and clipped it. This, he testified, shortened the condyle and would cause a cross bite. He testified that in order to effect a balance between the condyles, he operated and clipped the healthy right condyle so that both condyles would be of the same length. The trouble with this latter procedure is that it resulted in an open bite. She now has occlusion on only four teeth in the back of her mouth, i.e., on the rear two teeth on each side; there is no contact whatsoever with the front teeth. She is unable to close her mouth and it remains open. This condition is permanent. She continues to suffer pain. She can open her mouth only about n/i6 of an inch. The normal opening is one and one-half to two inches. She can eat only soft food.
Oliva prescribed an Ace bandage in order to bring her teeth into occlusion, but it did not work. He also told her to chew gum. She saw Oliva about four times after the surgery, and then she consulted Dr. Carl Sammarco, an oral surgeon, at her home in New Jersey. Dr. Sammarco prescribed a wiring process in an attempt to bring the teeth into occlusion.
At the trial there was read into evidence the deposition of Dr. Carl Sam-marco, who practiced in Asbury Park, New Jersey. He testified that he called Dr. Oliva on the telephone and asked him why he had done a bilateral condy-lectomy, and that Oliva replied it was to balance the joints. Sammarco told Oliva that was rather unusual. Oliva disagreed and said it was not unusual 'and that there was nothing to worry about because the condyles will grow back. Oliva did not, however, name any such operation that he had ever performed. In some forty or fifty fractured con-dyles treated by Dr. Sammarco, he found it necessary to operate on only one. Dr. Sammarco testified that the x-rays of Barbara showed two normal condyles. He could not see how Dr. Oli-va could determine by clinical examination the presence of a fragment which was not large enough to appear on an x-ray. Sammarco testified that he had never heard of doing a condylectomy on a normally functioning joint.
Dr. Sammarco further testified that an Ace bandage, as prescribed by Dr. Oliva, had long been discarded as useless to bring about occlusion.
Two oral surgeons, Dr. Carson Blevins and Dr. Edwin Smith, from the area of Johnson City, Tennessee, were called as expert witnesses for plaintiff. Both doctors testified that they were familar with the practice of oral and plastic surgery as it pertains to the area of the jaw, in the locality of Johnson City.
Dr. Carson Blevins testified that as a result of the operation, Barbara could open her mouth only about Wie of an inch; the normal opening is one and one-half to two inches. In answer to a hypothetical question, he testified that anyone who does condylar fractures should know that the choice of treatment is a conservative approach to start with. Since there was no evidence of a fracture in the x-rays he felt that radical surgical treatment was unjustified. He testified:
“ * x- * jf y0U don’t get the occlusion back where the patient can use the jaws as they are supposed to be and function properly, everything else is lost. I do feel this patient should have been — the jaws and teeth should have been put back in proper relationship immediately or before the patient left the hospital and maintained there. But I want it known, first, I don’t think the surgery should have been done.”
The doctor based that conclusion—
“ * * * because there was no evidence of a fracture on the X-ray and from the history and from what I read in the hospital records, I could see no reason for radical surgery.”
He was of the view also that further x-rays should have been made and consultation had before radical surgery.
Dr. Smith defined oral surgery as
“ * * * that part of dentistry that deals with the diagnosis, surgical and adjunctive treatment of injuries, disease, malformations of the human jaws and associated structures.”
Dr. Smith was of the opinion that Oli-va did not exercise the degree of care and skill possessed by practitioners of similar skill in the area. He questioned “the diagnosis of a fracture that waited six days to hurt.” He was of the opinion that the treatment plan was “radical, fracture or not.”
Both oral surgeons also testified in response to questions by the Court, that Oliva did not exercise that degree of care and skill possessed by other surgeons in the locality.
Oliva had qualified to practice in Memorial Hospital. He had consulted the hospital radiologist, Dr. Range, in connection with other cases when there was a question about the x-rays, but did not consult him about Barbara’s x-rays nor his interpretation of them, notwithstanding the fact that he (Oliva) claimed there was an irregularity. This seems significant, particularly since he did not agree with Dr. Range’s interpretation. Furthermore, Oliva had plenty of time to obtain additional x-rays of the left jaw, as the surgery was not performed until ten days later, on October 26th. Oliva did order other x-rays, not of Barbara’s left jaw, but of her chest. Oliva did not consult with any of the oral surgeons in the area who specialized in the treatment and setting of fractured jaws, or with anyone else.
Oliva testified that ankylosis and fibrosis of the left jaw had developed, which necessitated the operation. These conditions were not shown on the x-rays. However, even though such conditions might not appear on x-rays, they would seem to be quite significant, and the conditions, if they existed, ought to have been noted in the hospital record; but they were not.
The defense called Dr. Dossett, the internist, who testified concerning his examination and treatment of Barbara. He said he “felt sure that she had a fracture in the area of the temporoman-dibular joint where the bone was.” He did not qualify as an expert in the reading of x-rays or in oral or plastic surgery. The record does not reveal when he made the diagnosis, or that he ever advised his patient of his diagnosis.
The defense called two plastic surgeons, Drs. Claringdon and Jerome, to testify. They were from Memphis, Tennessee, about six hundred miles from Johnson City. In qualifying them as expert witnesses, defense counsel asked them if they were familiar with the standard of care as regards plastic surgery or the degree of care and skill required of a plastic surgeon practicing his speciality in Johnson City, Tennessee, and they both testified that they were. It should be remembered that Dr. Oliva was the only plastic surgeon in that area, and therefore his standard of care could not be compared with that of any other plastic surgeon in that locality. It could be compared with that of oral surgeons in the area who specialized in surgery of the jaw and with that of plastic surgeons in other areas of the state.
The District Judge recognized the problem, stating that the rule in Tennessee is that—
“ * * * the standard required of the defendant was that he possess [and exercise] the degree of skill and ability ordinarily possessed [and exercised] by men [and women] engaged in the practice of medicine and surgery in the same locality * * *. Haskins v. Howard, 159 Tenn. 86, 95, 16 S.W.2d 20."
The District Judge was of the view that an exception to the rule should be made and resort had to the standard in a wider area but still encompassing Johnson City. On this theory he admitted the testimony of the two Memphis experts and excluded opinion testimony of the New Jersey oral surgeon (who was not much farther away than Memphis), relative to the standard of care.
The District Judge admitted the testimony of two local oral surgeons skilled in surgery of the jaw because the two professions appeared to him to overlap in the area of the diagnosis and treatment of injuries to the jaw.
Dr. Claringdon testified, in answer to a hypothetical question, that there are three ways of treating a condylar fracture that has become stuck: unilateral, or one side condylectomy; bilateral, or both sides; or unilateral with attempt to reconstruct the joint; that the third method is of more recent origin; and that a unilateral ends up with “maybe a cross bite”. A bilateral “will most probably end up with an open bite due to vertical shortening of the bones.”
The opinion of Dr. Claringdon as to choice is weakened because he admitted that he had never performed a bilateral condylectomy. He said it was an unusual case and he had never seen one of them. The testimony as to the unusual case conflicted with the statement made by Dr. Oliva to Dr. Sammarco, to the ef-feet that bilateral condylectomies were usual.
The hypothetical question put to Dr. Claringdon also included the assumption that fibrosis and ankylosis were present, which presence, as previously pointed out, was in dispute. If they were not present, his opinion would be different.
The other plastic surgeon called by the defense was Dr. Jerome, who was Chairman of the Department of Plastic Surgery at the University of Tennessee Medical College, in Memphis. He also engaged in the practice of plastic surgery. He taught Dr. Oliva when he was a student in that University, and described Dr. Oliva as one of his best students.
Dr. Jerome defined plastic surgery as—
“ * * * that branch of surgery which has the objective of either improvement in appearance or improvement in function.”
This definition is broad enough to embrace practically all fields of surgery. In establishing his qualifications as an expert, Dr. Jerome testified that he reviewed 1700 facial fractures within a period of ten years. He could not answer a question on cross-examination as to whether a bilateral condylectomy was involved in any of the 1700 cases.
Referring to late fractures of five weeks, he said: “I have never seen one in my entire experience.” In all of his extensive experience, he never performed a bilateral condylectomy. Nevertheless, Dr. Jerome testified that Dr. Oliva’s procedure was correct. In answer to a hypothetical question, he testified:
“First of all, it should be very apparent at this late date, I think, about five weeks post-trauma, is that correct? That this patient was unable to move her mouth; that she obviously had a fracture of the neck of the condyle, and not only did she have fibrosis and ankylosis, but I expect she probably had malunion due to the fact that she was unable to move her mouth. There is nothing that could have been done except to go ahead and remove the condyle.
“There are several acceptable procedures. This is one which would be acceptable too. I must also point out that a fracture five weeks post-trauma, you must just as well say the ballgame is over. You have got to accept disability.
“You are trying to substitute a lesser disability for a greater disability. In other words, the complete locked jaw or frozen jaw, I can’t think of anything more disabling than that.
“If you do a unilateral condylecto-my, of course, the disability regarding a cross bite — that can be disabling. If you do a bilateral condylectomy, you are going to have an open bite. There isn’t anything you can do for an open bite. That is something you have got to accept. I think it would be the lesser of the two disabilities.” (App. at 311-312)
This testimony as to the seriousness of Barbara’s condition conflicts with the verbal assurances given by Dr. Oliva to Barbara and her husband and mother, that the operation would be minor and that she would be able to eat and to return to school in three or four days.
The hypothetical question put to Dr. Jerome also contained the assumption that ankylosis and fibrosis were present. This presence was in dispute. The doctor testified that he would change his opinion if that condition was not present in fact.
Dr. Jerome admitted that a finding of ankylosis and fibrosis would warrant entry on the medical record.
The excised fragments of the condyles were submitted to the hospital pathologist, who found them “grossly unremarkable”.
Oliva contends that the operative procedure which he followed was a matter of choice among competent physicians and that he cannot be held liable for malpractice in selecting one which in his best judgment was best suited to his patient’s needs. Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); Ball v. Mallinkrodt Chem’l Works, 53 Tenn. App. 218, 381 S.W.2d 563 (1964): Mc-Peak v. Vanderbilt Univ. Hosp., 33 Tenn.App. 76, 229 S.W.2d 150 (1950); Blankenship v. Baptist Memorial Hosp., 26 Tenn.App. 131, 168 S.W.2d 491 (1942).
It would seem to us that when the choice to be selected by the physician involved the serious consequences described by the Memphis plastic surgeons, i.e., the choice between a cross bite or an open bite, the patient ought to be consulted and given opportunity to consider and make the selection as to the one she preferred. According to the testimony of plaintiff, her husband and mother, this was not done. To the contrary, they were told by Oliva that the operation would be minor and that plaintiff would be able to eat and to return to school within a few days.
Furthermore, neither Doctor Claring-don nor Doctor Jerome (in his wide experience), who testified as to the choice of procedures, had ever performed a bilateral condylectomy, and therefore they had no experience with the operation. This rendered their testimony as to choice of procedures of little value.
In considering the motion for a directed verdict, the testimony as to the assurances given by Oliva, although it may be controverted in some respects, must be taken as true. It is for the jury, and not the Court, to determine the facts.
A physician stands in a position of trust and confidence with respect to his patient and he has a duty to exercise the utmost good faith. Ball v. Mallinkrodt Chem’l Works, supra 381 S.W.2d at 567; 41 Am.Jur., Physicians and Surgeons, §§ 73-75; 70 C.J.S. Physicians and Surgeons § 48m.
In Ball, the Court of Appeals of Tennessee approved the following instruction to the jury:
“It is also the duty of a physician or surgeon to disclose to the plaintiff facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. Where the consequences are serious and substantially certain to occur, it is the physician’s or surgeon’s duty to disclose such facts to the patient. The physician may not minimize the normal operation in order to induce the patient’s consent, at the same time the physician must place the welfare of his patient above all else, and the very fact places him in a position in which he must sometimes choose between two alternate courses of action, one is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote. This may well result in, alarming a patient who is already unduly apprehensive and who may, as a result, refuse to undertake the surgery in which there is, in fact, minimal risk. It may also actually increase the risk by reason of the psychological result of the apprehension of it. The other is to recognize that each patient presents a separate problem, that the patient’s mental and emotional condition is important and in certain cases may be crucial, and that in discussing the elements of risk a certain amount of discretion must be employed consistent with the full disclosure necessary for an informed consent.” (Id. at 567)
The appendix in this case contains what purports to be a copy of a consent to the operation, which was signed by the plaintiff and by her mother. Why it was signed by her mother instead of her husband does not appear. In the consent form the operation is described as “Exc.bil.condyles.” There is no proof of the meaning of the words “Exe.bil.eon-dyles” as used in the consent, or that their meaning was ever explained by anyone to the patient or her mother. The patient would not normally expect that the consent which she was asked to sign would differ from what her doctor told her. The consent also states:
“The nature and purpose of the operation, possible alternative methods of treatment and possibility of complications have been fully explained to me.”
The doctor did explain to her that it was a minor operation, and that she would be able to eat and to return to school within a few days. He told her that he would repair the left condyle. He did not tell her that he intended to operate on her healthy right condyle; nor did he tell her of any choices he had, nor ask her which one she preferred. Contrary to the provisions of the “Consent”, he did give her assurances as to the results.
Furthermore, the physician’s privilege to decide between one of two or more choices in the treatment of his patient is conditioned upon the presumption that there was a “careful diagnosis”. Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20 (1929), citing Burnett v. Layman, 133 Tenn. 323, 328, 181 S.W. 157 (1915).
In the present case there can be no such presumption. The question whether Oliva made a careful diagnosis was a disputed issue of fact for the jury to decide.
We think the Court was correct in admitting the testimony of oral surgeons who testified that they were familiar with the practice in the locality, of oral as well as plastic surgery as it related to injuries to the jaw. An issue of fact was present as to whether Oliva’s diagnosis and procedures conformed to proper practice in the locality. In view of the conflict in testimony of the experts, this was for the jury to decide.
The defense questioned the propriety of the wiring of plaintiff’s jaws by Dr. Sammarco. This likewise is a disputed issue of fact.
It would have been better practice in this case for the District Judge to have submitted the case to the jury. In the event that plaintiff obtained a verdict, he could enter judgment notwithstanding the verdict if he was of the opinion that plaintiff had not made out a case. On appeal, this Court could then finally dispose of the case without the necessity of remanding for a new trial. Green v. Reynolds Metals Co., 328 F.2d 372 (5th Cir. 1964); Talbot-Windsor Corp. v. Miller, 309 F.2d 68 (1st Cir. 1962).
For error in directing a verdict, the judgment of the District Court is reversed and the cause is remanded for a new trial.
. The testimony of the three oral surgeons as to proper practice conforms to that approved by Laszlo Schwartz, D.D.S., in “Disorders of the Temporomandibular Joint,” where the author states:
“Following unilateral condylectomy or resection the function is generally good. During opening the mandible usually deviates to the operated side with upward tilting in some cases. However, the occlusion is generally normal. Sometimes, however, such upward tilting of the mandible on the operated side causes traumatic occlusion and an open bite on the opposite side. To counteract this treatment should be instituted as soon as possible after the operation to secure the best possible occlusal balance, if necessary by prosthetic correction. Bilateral resection is, however, inadvisable, owing to a tendency for backward movement of the mandible with tilting, causing the opening of the bite anteriorly, and making it difficult to obtain a satisfactory occlusion.” (p. 275) (Italics ours)
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_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
John M. MUDD, Appellant, v. UNITED STATES of America, Appellee.
No. 85-5850.
United States Court of Appeals, District of Columbia Circuit.
Argued May 12, 1986.
Decided Aug. 22, 1986.
Gerald I. Fisher, Washington, D.C., for appellant.
Mary Ellen Abrecht, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Barry M. Tapp, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Before MIKVA, EDWARDS and SCALIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge SCALIA.
MIKVA, Circuit Judge:
This appeal is the latest in a series of cases construing the Supreme Court’s decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). The question presented is whether an order by the district court, instructing defense counsel not to speak with his client about the latter’s testimony over a weekend recess, deprived defendant of his sixth amendment right to the effective assistance of counsel. If there was a violation, we then must decide whether reversal is automatically required or whether the order should be subject to a “harmless error” inquiry.
Although Geders did not address the precise question before us, we find its reasoning decisive. We hold that an order that denies a criminal defendant the right to consult with counsel during a substantial trial recess, even though limited to a discussion of testimony, is inconsistent with the sixth amendment of the Constitution. We also find that the harm caused by this violation is such that reversal is required without a showing of actual prejudice. We therefore reverse the defendant’s conviction and remand for a new trial.
I.
In September 1984, appellant John Mudd was arrested on suspicion of receiving stolen government property, in violation of 18 U.S.C. § 641 (1982). Mudd was charged with having received several units of computer equipment which had been stolen from the U.S. Department of Agriculture. He also was charged with possession of an unregistered firearm and possession of unregistered ammunition. See D.C.Code § 6-2311(a) (1981) (unregistered firearm); id. § 6-2361(c) (1981) (unregistered ammunition).
Mudd’s trial began on Wednesday, April 24, 1985. On Friday, April 26, defendant took the stand in his own defense and testified on direct examination. At the close of the day, the court called a recess until the following Monday morning, at which time cross-examination would begin. Before adjourning the judge instructed Mudd’s lawyer:
You are not to talk to Mr. Mudd about his testimony between now and the time he undergoes his cross-examination. You can talk to him about other things, but not about his testimony.
Trial Trans, at 42 (Apr. 26, 1985). Defense counsel objected, but said that he would obey the instruction.
The jury subsequently found defendant guilty on all counts. Mudd was fined $10,-000 for receiving stolen property, $1,000 for possession of a firearm, and was placed on probation for three years. Defendant also received a one-year, concurrent probation term for possession of unregistered ammunition.
II.
Mudd’s primary contention on appeal is that the order restricting his ability to consult with his lawyer denied him the effective assistance of counsel. Appellant further asserts that this type of violation requires automatic reversal, without an inquiry into whether it was prejudicial. To support his claims, Mudd relies heavily on the Supreme Court’s decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
Petitioner in Geders was a co-defendant charged with conspiracy to import and illegal importation of drugs. Geders elected to take the stand, and testified on direct examination until the end of the day when the judge called a recess. Because he was concerned that the defendant might try to alter his testimony in anticipation of cross-examination, the judge instructed defense counsel not to discuss “anything” about the case with his client during the overnight recess. He gave Geders a similar (but not identical) instruction. Id. at 82-83 & n. 1, 96 S.Ct. at 1332-33 & n. 1. Defendant was convicted and the Fifth Circuit affirmed, finding that even if the order deprived Geders of the assistance of counsel, reversal was not warranted absent a showing that the order caused actual prejudice. United States v. Fink, 502 F.2d 1, 8-9 (5th Cir.1974).
The Supreme Court unanimously reversed. The Court ruled that the trial judge’s order deprived defendant of the “guiding hand of counsel” at a critical point in the proceeding. Geders, 425 U.S. at 89, 96 S.Ct. at 1335, quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). It noted that an overnight recess is often a crucial time for both defendant and counsel:
Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.
Geders, 425 U.S. at 88, 96 S.Ct. at 1335. Because of the overriding importance of the assistance of counsel to a criminal defendant, the Court found that the judge’s order could not be upheld. Id. at 91, 96 S.Ct. at 1336. The conviction was reversed and the case remanded for further proceedings.
Subsequent cases have liberally construed Geders. Courts have extended the holding to strike down orders restricting all discussion between attorney and client during a one-hour lunch recess, United States v. Conway, 632 F.2d 641 (5th Cir.1980); United States v. Bryant, 545 F.2d 1035 (6th Cir.1976), and during brief, routine recesses in the trial day, United States v. Allen, 542 F.2d 630 (4th Cir.1976) (recesses lasting 20 minutes and “a minute”), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). The message of these cases is clear: a trial court may not place a blanket prohibition on all attorney/client contact, no matter how brief the trial recess.
The government nevertheless argues that this case is distinguishable, because the scope of the trial court’s order was significantly different. The trial judge in Geders told defendant not to speak with his lawyer about “anything”; in contrast, Mudd’s lawyer was ordered not to discuss Mudd’s testimony with his client, but was told that he could discuss “anything else.” The government argues that Geders was specifically concerned about a prohibition on all attorney/client contact, and that it never reached the question of a more limited restriction. The government notes that the cases relied on by Mudd all involve blanket restrictions, and indicates that no federal court has found a violation in the situation presented here.
The government claims that the language in Geders shows that the Supreme Court only intended to forbid complete sequestration of defendant from counsel. In a footnote, for example, the Court said that the trial judge initially instructed defense counsel not to discuss “anything,” but then later told defendant not to discuss his “testimony” with anyone. Geders, 425 U.S. at 85 n. 1, 96 S.Ct. at 1334 n. 1. The Court resolved this “ambiguity” by concluding that the order was intended to restrict all discussion. Id. The government claims that had the Court meant to prohibit restrictions such as the one imposed here, it would not have been necessary to resolve the difference between the trial judge’s two orders.
In addition, the government argues that the sixth amendment interests are substantially lower when the judge’s order only extends to a discussion of testimony. The government points out that Mudd was free to do things that the defendant in Geders was not: help counsel plot strategy and tactics, pursue leads, and discuss some of the day’s events. See id. at 88, 96 S.Ct. at 1335. Here, says the government, the court struck a balance by ensuring that Mudd's testimony was protected from outside influence, without interfering with his right of consultation on other matters.
We cannot construe Geders as the government suggests. A fair reading of that opinion shows that a more limited order would not have cured the constitutional defect. The Court recognized that if a defendant is allowed to discuss his testimony, there is a danger that counsel might improperly help his client tailor his testimony in response to the anticipated cross-examination; it said, however, that there are other ways to reduce this danger. For example, the prosecutor can cross-examine the defendant about the amount of “coaching” he received; or the judge can obviate the need for an order by refusing to call a recess until both direct and cross-examination were complete. Id. at 89-90, 96 S.Ct. at 1335-36. Significantly, the Supreme Court did not suggest that an order restricting discussion to all matters except testimony would be permissible. See United States v. Romano, 736 F.2d 1432, 1437 (11th Cir.1984), vacated in part on reh’g on other grounds, 755 F.2d 1401 (1985). The only logical implication is that the Court also meant to forbid prohibitions on attorney/defendant discussions of the defendant’s testimony during a substantial recess, not just blanket prohibitions during such a recess.
While the order in this case was indeed more limited than the one in Geders, the interference with sixth amendment rights was not significantly diminished. Even though Mudd was free to discuss strategy and tactics, there are obvious, legitimate reasons he may have needed to consult with counsel about his upcoming cross-examination. For example, Mudd’s lawyer may have wanted to warn defendant about certain questions that would raise self-incrimination concerns, or questions that could lead Mudd to mention excluded evidence. More generally, defendant may have needed advice on demeanor or speaking style, a task made more difficult if specific testimony could not be mentioned. While many of the benefits of counsel outlined by Geders are not related to testimony per se, an order such as the one in this case can have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court’s directive. Consultation between lawyers and clients cannot be neatly divided into discussions about “testimony” and those about “other” matters.
In short, there is no question that even a limited order such as the one here conflicts with sixth amendment rights. While concerns about improper attorney influence are legitimate (although there is no evidence of it in the case before us), Geders makes clear that courts may not balance the danger of altered testimony against the right to counsel:
To the extent that conflict remains between the defendant’s right to consult with his attorney during a long overnight recess in the trial, and the prosecutor’s desire to cross-examine the defendant without the intervention of counsel, with the risk of improper “coaching,” the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel.
Id. 425 U.S. at 91, 96 S.Ct. at 1337 (citation omitted).
Finally, we note that our decision today is consistent with other circuit court decisions on this question. Contrary to the government’s implication, the issue before us is not one of first impression in the federal courts. In Romano, supra, the Eleventh Circuit faced a similar challenge to an order prohibiting defendant from discussing his upcoming testimony with counsel during an overnight recess. Relying on many of the factors just addressed, the Romano court found Geders controlling despite the testimonial limitation on the judge’s order, and found a sixth amendment violation. 736 F.2d at 1436-37; see also Stubbs v. Bordenkircher, 689 F.2d 1205, 1206 (4th Cir.1982) (trial court order not to discuss testimony during lunch hour held “constitutionally impermissible”), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983).
In short, the district judge’s order violated the sixth amendment. Some courts have held, though, that a defendant waives his right if no timely objection is made. See Stubbs, 689 F.2d at 1207; Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982); Allen, 542 F.2d at 634. This matter is discussed infra; first, however, we address the effect of the violation on the disposition of this appeal.
Having found a violation, we next consider whether reversal is required per se, or whether we should subject the violation to a harmless error analysis. The government argues that even if there was a violation, this court should reverse only if “there is a reasonable possibility that the error contributed to the verdict against appellant.” Brief for Appellee at 12, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
We find that a per se rule best vindicates the right to the effective assistance of counsel. To require a showing of prejudice would not only burden one of the fundamental rights enjoyed by the accused, see Powell, 287 U.S. at 68-69, 53 S.Ct. at 64, but also would create an unacceptable risk of infringing on the attorney-client privilege. See Redman, 657 F.2d at 24. The only way that a defendant could show prejudice would be to present evidence of what he and counsel discussed, what they were prevented from discussing, and how the order altered the preparation of his defense. Presumably the government would then be free to question defendant and counsel about the discussion that did take place, to see if defendant nevertheless received adequate assistance.
We cannot accept a rule whereby private discussions between counsel and client could be exposed in order to let the government show that the accused’s sixth amendment rights were not violated. This court has stated:
As the common law has long recognized, the right to confer with counsel would be hollow if those consulting counsel could not speak freely about their legal problems____ Limitations on the attorney-client privilege have therefore been drawn narrowly, to remove the privilege only where the privileged relationship is abused.
Martin v. Lauer, 686 F.2d 24, 32 (D.C.Cir. 1982) (footnotes omitted). Having already been subjected to an improper judicial order, it would be anomalous if defendant was also forced to relinquish the right to have his discussions with his lawyer kept confidential.
A per se rule is also more consistent with Geders. While the majority opinion did not explicitly discuss the issue, the Court never inquired whether defendant Geders had been prejudiced by the judge’s instructions. It necessarily rejected the holding of the Fifth Circuit, which had held that reversal was not justified unless there was a showing of “actual harm.” Fink, 502 F.2d at 9. Given that the question was squarely presented, it is unreasonable to assume that the Supreme Court sub silentio subjected the violation to a harmless error test. See Geders, 425 U.S. at 92, 96 S.Ct. at 1337 (“a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice”) (Marshall, J., concurring).
We note that our reading of Geders is consistent with later Supreme Court understanding. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Court cited Geders as an example of where it had “found constitutional error without any showing of prejudice____” Id. at 659 n. 25, 104 S.Ct. at 2047 n. 25. Based on both the policy concerns and our reading of Geders, we conclude that Mudd is not required to show actual prejudice to his right to consult with counsel; it is enough to show that the district court restricted that right. See Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) (“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”).
The cases cited by the government are not to the contrary. The government claims that the recent decision in Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), stands for the proposition that a harmless error test is required before reversing a conviction for a sixth amendment violation. This argument is far too broad — Van Arsdall involved a violation of the confrontation clause, not the right to counsel clause of the sixth amendment. Nothing in that case suggested that all sixth amendment infringements should be subject to a similar inquiry; to the contrary, the Court said:
we have observed that some constitutional errors — such as denying a defendant the assistance of counsel at trial ...— are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.
Id. at 1437 (citation omitted).
For similar reasons we are unpersuaded by the government’s citation to United States v. Kelly, 790 F.2d 130 (D.C.Cir. 1986). There we were confronted by allegations that the government had interfered with the defendant’s right to counsel by permitting one of its agents to steal documents from defense counsel. While the panel stated that sixth amendment violations were normally subject to a harmless error test, id. at 139 n. 6, it also recognized that “[i]n some cases, the court’s inquiry will end once the constitutional violation is established.” Id. at 138 n. 6. Given that Kelly involved a specific and unique type of violation — the disruption of attorney/client deliberations by covert government action — and did not address the type of violation present in this case, the government’s reliance on it is misplaced.
Nor is our conclusion altered by the substantial division among the circuits on the question whether a “harmless error” rule should be applied to orders that unconstitutionally restrict attorney/defendant consultations. Compare United States v. DiLapi, 651 F.2d 140, 148 (2d Cir.1981) (apparently applying an “actual prejudice” standard), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), and Redman, 657 F.2d at 24 (requiring defendant to show that he was “deprived” of right to counsel), with Conway, 632 F.2d at 644-45 (5th Cir.), and Bryant, 545 F.2d at 1036 (6th Cir.) (apparently applying a per se reversal rule). Those circuits that have applied a harmless error analysis seem to have done so in part because of their belief that it is unlikely that a defendant would be prejudiced by a nonconsultation order during a brief recess. See, e.g., DiLapi, 651 F.2d at 148 (five minute recess). Although we share this belief, we think that, for the reasons we have already indicated, case-by-case inquiry into the harmlessness of non-consultation orders is highly undesirable. It seems to us the difficulty is better met by acknowledging that where an order restricting the discussion of testimony is imposed during a very brief recess the likelihood of prejudice is so small as to be essentially nonexistent, and thus no sixth amendment violation occurs. Cf. Kelly, 790 F.2d at 138 n. 6 (“[S]ome type of prejudice is an element of [a sixth amendment] claim itself.”) (citing Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
We thus do not find that all orders restricting the discussion of testimony constitute a violation, no matter what their duration; unlike blanket prohibitions, these more limited orders only interfere with the right to counsel when they cover a substantial trial recess. When these sixth amendment violations occur, however, we agree with those circuits that have applied a per se reversal rule. We recognize that the boundaries of orders forbidding discussion of just testimony will at times be hard to define. See supra page 1512. We therefore also agree with those circuits that require the defense counsel to make a timely objection to the order, see, e.g., Redman, 657 F.2d at 24, to ensure that the judge narrowly limits its scope, and to ensure that its use is restricted to insignificant trial recesses. Because the recess at issue in this case was substantial, the district court’s order prohibiting the defendant from discussing his testimony with counsel during the recess violated the sixth amendment and was per se reversible error.
III.
In his brief, Mudd claims that the trial judge committed other errors that compel reversal. Because one of these alleged errors could re-occur at a new trial, we pause briefly to discuss it.
Appellant asserts that the district court judge gave improper jury instructions. Defense counsel asked the judge to instruct the jury that, in order to convict Mudd for receiving stolen property, the jury must find that defendant knew the computers were stolen at the time he took possession of them. The judge refused, and told the jury that it was sufficient if Mudd received or retained the equipment with the knowledge that it was stolen. Trial Trans. at 719. The judge’s position is clearly correct. Mudd was indicted for violating 18 U.S.C. § 641, which states that a person is guilty if he “receives, conceals, or retains” anything of value which belongs to the United States, knowing that the object is stolen (emphasis added). Although Mudd was indicted for “receiving, concealing, and retaining” stolen property, his argument that he therefore cannot properly be convicted unless all three acts are proven is merit-less. See Joyce v. United States, 454 F.2d 971, 976-77 (D.C.Cir.1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972).
CONCLUSION
The trial court’s order, which prevented Mudd from discussing his testimony with his lawyer during a weekend recess, deprived defendant of the effective assistance of counsel. We therefore reverse and remand for further proceedings consistent with this opinion.
It is so ordered.
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:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
No. 76-99.
Argued April 20, 1977
Decided June 20, 1977
Stewart, J., delivered the opinion of the Court, in which BreNNAN, White, Marshall, Blackmtw, Powell, and SteveNS, JJ., joined. RehNquist, J., filed an opinion dissenting in part, in which Burger, C. J., joined, post, p. 373.
Dennis H. Vaughn argued the cause for petitioner. With him on the briefs were Leonard S. Janofsky and Howard C. Hay.
Thomas S. Martin argued the cause for respondent. With him on the brief were Acting Solicitor General Friedman, Deputy Solicitor General Jones, Abner W. Sibal, Joseph T. Eddins, and Beatrice Rosenberg.
Wayne S. Bishop and John J. Gallagher filed a brief for the Texas Association of Business as amicus curiae urging reversal.
Robert T. Thompson, Lawrence Kraus, and Richard P. O’Brecht filed a brief for the Chamber of Commerce of the United States as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
In 1972 Congress amended Title VII of the Civil Rights Act of 1964 so as to empower the Equal Employment Opportunity Commission to bring suit in a federal district court against a private employer alleged to have violated the Act. The sole question presented by this case is what time limitation, if any, is imposed on the EEOC’s power to bring such a suit.
I
On December 27, 1970, an employee of the petitioner Occidental Life Insurance Co. filed a charge with the EEOC claiming that the company had discriminated against her because of her sex. After a fruitless referral to the appropriate state agency, the charge was formally filed with the EEOC on March 9, 1971, and subsequently served on the company. After investigation, the EEOC served proposed findings of fact on the company on February 25, 1972, to which the company in due course filed exceptions. Conciliation discussions between the EEOC and the company began in the summer of 1972. These discussions continued sporadically into 1973, but on September 13 of that year the EEOC determined that conciliation efforts had failed and so notified the company and the original complainant. The latter requested that the case be referred to the General Counsel of the EEOC to bring an enforcement action. On February 22, 1974, approximately three years and two months after the complainant first communicated with the EEOC and five months after conciliation efforts had failed, the EEOC brought this enforcement action in a Federal District Court.
The District Court granted the company’s motion for summary judgment on the ground that the law requires that an enforcement action be brought within 180 days of the filing of a charge with the EEOC. Alternatively, the court held that the action was subject to the most appropriate state limitations statute and was therefore barred by the one-year limitation provision of Cal. Code Civ. Proc. Ann. § 340 (3) (West Supp. 1977). The Court of Appeals for the Ninth Circuit reversed, holding that the federal law does not impose-a 180-day limitation on the EEOC’s authority to sue and that the action is not governed by any state statute of limitations. 535 F. 2d 533.
We granted certiorari, 429 U. S. 1022, to consider an important and recurring question regarding Title VII.
II
As enacted in 1964, Title VII limited the EEOC’s function to investigation of employment discrimination charges and informal methods of conciliation and persuasion. The failure of conciliation efforts terminated the involvement of the EEOC. Enforcement could then be achieved, if at all, only if the charging party, or other person aggrieved by the allegedly unlawful practice, initiated a private suit within 30 days after EEOC notification that conciliation had not been successful.
In the Equal Employment Opportunity Act of 1972 Congress established an integrated, multistep enforcement procedure culminating in the EEOC's authority to bring a civil action in a federal court. That procedure begins when a charge is filed with the EEOC alleging that an employer has engaged in an unlawful employment practice. A charge must be filed within 180 days after the occurrence of the allegedly unlawful practice, and the EEOC is directed to serve notice of the charge on the employer within 10 days of filing. The EEOC is then required to investigate the charge and determine whether there is reasonable cause to believe that it is true. This determination is to be made “as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.” If the EEOC finds that there is reasonable cause it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” When “the Commission [is] unable to secure... a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge.”
The 1972 Act expressly imposes only one temporal restriction on the EEOC's authority to embark upon the final stage of enforcement — the bringing of a civil suit in a federal district court: Under § 706 (f)(1), the EEOC may not invoke the judicial power to compel compliance with Title VII until at least 30 days after a charge has been filed. But neither § 706 (f) nor any other section of the Act explicitly requires the EEOC to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time.
The language of the Act upon which the District Court relied in finding a limitation that bars the bringing of a lawsuit by the EEOC more than 180 days after a timely charge has been filed with it is found in § 706 (f)(1), 42 U. S. C. § 2000e-5 (f)(1) (1970 ed., Supp. V), which provides in relevant part:
“If a charge filed with the Commission... is dismissed by the Commission, or within one hundred and eighty days from the filing of such charge or the expiration of any period of reference [from a state agency], whichever is later, the Commission has not filed a civil action under this section..., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.”
On its face, § 706 (f)(1) provides little support for the argument that the 180-day provision is such a statute of limitations. Rather than limiting action by the EEOC, the provision seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court. The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed. Nothing in § 706 (f)(1) indicates that EEOC enforcement powers cease if the complainant decides to leave the case in the hands of the EEOC rather than to pursue a private action.
In short, the literal language of § 706 (f)(1) simply cannot support a determination that it imposes a 180-day time limitation on EEOC enforcement suits. On the contrary, a natural reading of § 706 (f)(1) can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so. After waiting for that period, the complainant may either file a private action within 90 days after EEOC notification or continue to leave the ultimate resolution of his charge to the efforts of the EEOC.
Only if the legislative history of § 706 (f) (1) provided firm evidence that the subsection cannot mean what it so clearly seems to say would there be any justification for construing it in any other way. But no such evidence is to be found.
The dominant Title VII battle in the 92d Congress was over what kind of additional enforcement powers should be granted to the EEOC. Proponents of increased EEOC power constituted a substantial majority in both Houses of Congress, but they were divided between those Members who favored giving the EEOC power to issue cease-and-desist orders and those who advocated authorizing it to bring suits in the federal district courts.
The supporters of cease-and-desist authority won the first victory when Committees in both Houses favorably reported bills providing for that enforcement technique. The bill reported by the House Committee contained a section entitled “Civil Actions by Persons Aggrieved,” embodying the provisions that eventually became that part of § 706 (f)(1) at issue in the present case.
The Committee Report clearly explained that the purpose of this provision was to afford an aggrieved person the option of withdrawing his case from the EEOC if he was dissatisfied with the rate at which his charge was being processed:
“In the case of the Commission, the burgeoning workload, accompanied by insufficient funds and a shortage of staff, has, in many instances, forced a party to wait 2 to 3 years before final conciliation procedures can be instituted. This situation leads the committee to believe that the private right of action, both under the present Act and in the bill, provides the aggrieved party a means by which he may be able to escape from the administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process.”
Opponents of cease-and-desist authority carried their cause to the floor of the House, where Congressmen Erlenborn and Mazzoli introduced a substitute bill, which authorized the EEOC when conciliation failed to file federal-court actions rather than conduct its own hearings and issue cease-and-desist orders. The Erlenborn-Mazzoli substitute contained a private action provision substantially the same as that of the Committee bill. There was no suggestion in the House debates that that section in the substitute bill was intended to be a statute of limitations on EEOC enforcement action, or that the purpose of the provision differed in any way from that expressed in the Committee Report. The Erlenborn-Mazzoli substitute was adopted by the House.
Senate action on amendments to Title VII was essentially parallel to that of the House, beginning with the introduction of a bill giving the EEOC cease-and-desist power, and ending with the substitution of a bill authorizing it instead to file suits in the federal courts. As in the House, both the original and substitute Senate bills authorized complainants dissatisfied with the pace of EEOC proceedings to bring individual lawsuits after 180 days. And, as in the House, the Senate Committee explained that such a provision was necessary because the heavy caseload of the EEOC could result in delays unacceptable to aggrieved persons:
“As it indicated in testimony, [the EEOC’s] caseload has increased at a rate.which surpasses its own projections. The result has been increasing backlogs in making determinations, and the possibility of occasional hasty decisions, made under the press of time, which have unfairly prejudiced complaints. Accordingly, where the Commission is not able to pursue a complaint with satisfactory speed, or enters into an agreement which is not acceptable to the aggrieved party, the bill provides that the individual shall have an opportunity to seek his own remedy, even though he may have originally submitted his charge to the Commission.”
The Senate Committee further noted that the “primary concern should be to protect the aggrieved person’s option to seek a prompt remedy,” and that the purpose of the 180-day provision was to preserve “the private right of action by an aggrieved person.”
Senator Dominick led the opposition to the Committee bill on the floor of the Senate. His substitute bill did not give the EEOC power to issue cease-and-desist orders but authorized it instead to bring enforcement suits in federal courts. The substitute bill also contained a provision authorizing private lawsuits almost identical to that contained in the Committee bill. There ensued a month-long Senate debate, at the conclusion of which the substitute bill was adopted by the Senate. During the course of that debate there were only a few isolated and ambiguous references to the provision in the substitute bill authorizing federal suits by complainants dissatisfied with EEOC delay. But a section-by-section analysis of the substitute bill made available before the final vote in the Senate clearly explained the purpose of the 180-day provision:
“In providing this provision, it is intended that... the person aggrieved should [not] have to endure lengthy delays if the agency does not act with due diligence and speed. Accordingly, the provisions... would allow the person aggrieved to elect to pursue his or her own remedy in the courts where agency action does not prove satisfactory.”
After the final Senate vote the House and Senate bills were sent to a Conference Committee. An analysis presented to the Senate with the Conference Report provides the final and conclusive confirmation of the meaning of § 706 (f) (1):
“The retention of the private right of action, as amended,... is designed to make sure that the person aggrieved does not have to endure lengthy delays if the Commission... does not act with due diligence and speed. Accordingly, the provisions... allow the person aggrieved to elect to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution.
“It is hoped that recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the EEOC.... However, as the individual’s rights to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief.”
The legislative history of §706 (f)(1) thus demonstrates that the provision was intended to mean exactly what it seems to say: An aggrieved person unwilling to await the conclusion of extended EEOC proceedings may institute a private lawsuit 180 days after a charge has been filed. The subsection imposes no limitation upon the power of the EEOC to file suit in a federal court.
Ill
The company argues that if the Act contains no limitation on the time during which an EEOC enforcement suit may be brought, then the most analogous state statute of limitations should be applied. Relying on a long line of cases in this Court holding state limitations periods applicable to actions brought under federal statutes, the company contends that California law barred the EEOC from bringing this lawsuit.
When Congress has created a cause of action and has not specified the period of time within which it may be asserted, the Court has frequently inferred that Congress intended that a local time limitation should apply. E. g., Runyon v. McCrary, 427 U. S. 160, 179-182 (Civil Rights Act of 1866); Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696 (§ 301 of the Labor Management Relations Act); O’Sullivan v. Felix, 233 U. S. 318 (Civil Rights Act of 1871); Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 (Sherman Antitrust Act); Campbell v. Haverhill, 155 U. S. 610 (Patent Act). This “implied absorption of State statutes of limitation within the interstices of... federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination.” Holmberg v. Armbrecht, 327 U. S. 392, 395.
But the Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. “Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.” Johnson v. Railway Express Agency, 421 U. S. 454, 465. State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute. Ibid.; Auto Workers v. Hoosier Cardinal Corp., supra, at 701; Board of County Comm’rs v. United States, 308 U. S. 343, 352. With these considerations in mind, we turn to the company’s argument in this case.
When Congress first enacted Title VII in 1964 it selected “[cooperation and voluntary compliance... as the preferred means for achieving” the goal of equality of employment opportunities. Alexander v. Gardner Denver Co., 415 U. S. 36, 44. To this end, Congress created the EEOC and established an administrative procedure whereby the EEOC “would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.” Ibid. Although the 1972 amendments provided the EEOC with the additional enforcement power of instituting civil actions in federal courts, Congress preserved the EEOC’s administrative functions in § 706 of the amended Act. Thus, under the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion. Unlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties.
In view of the federal policy requiring employment discrimination claims to be investigated by the EEOC and, whenever possible, administratively resolved before suit is brought in a federal court, it is hardly appropriate to rely on the “State’s wisdom in setting a limit... on the prosecution....” Johnson v. Railway Express Agency, supra, at 464. For the “State’s wisdom” in establishing a general limitation period could not have taken into.account the decision of Congress to delay judicial action while the EEOC performs its administrative responsibilities. See Order of Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342, 348; Cope v. Anderson, 331 U. S. 461, 464; Rawlings v. Ray, 312 U. S. 96, 98. Indeed, the one-year statute of limitations applied by the District Court in this case could under some circumstances directly conflict with the timetable for administrative action expressly established in the 1972 Act.
But even in cases involving no inevitable and direct conflict with the express time periods provided in the Act, absorption of state limitations would be inconsistent with the congressional intent underlying the enactment of the 1972 amendments. Throughout the congressional debates many Members of both Houses demonstrated an acute awareness of the enormous backlog of cases before the EEOC and the consequent delays of 18 to 24 months encountered by aggrieved persons awaiting administrative action on their complaints. Nevertheless, Congress substantially increased the workload of the EEOC by extending the coverage of Title VII to state employers, private employers with as few as 15 employees, and nonreligious educational institutions; by transferring the authority to bring pattern-or-practice suits from the Attorney General to the Commission; and by authorizing the Commission to bring civil actions in the federal courts. It would hardly be reasonable to suppose that a Congress aware of the severe time problems already facing the EEOC would grant that agency substantial additional enforcement responsibilities and at the same time consign its federal lawsuits to the vagaries of diverse state limitations statutes, some as short as one year.
Congress did express concern for the need of time limitations in the fair operation of the Act, but that concern was directed entirely to the initial filing of a charge with the EEOC and prompt notification thereafter to the alleged violator. The bills passed in both the House and the Senate contained short time periods within which charges were to be filed with the EEOC and notice given to the employer. And the debates and reports in both Houses made evident that the statute of limitations problem was perceived in terms of these provisions, rather than in terms of a later limitation on the EEOC’s power to sue. That perception was reflected in the final version of the 1972 Act, which requires that a charge must be filed with the EEOC within 180 days of the alleged violation of Title VII, and that the alleged violator must be notified “of the charge (including the date, place and circumstances of the alleged unlawful employment practice)... within ten days” thereafter.
The fact that the only statute of limitations discussions in Congress were directed to the period preceding the filing of an initial charge is wholly consistent with the Act’s overall enforcement structure — a sequential series of steps beginning with the filing of a charge with the EEOC. Within this procedural framework, the benchmark, for purposes of a statute of limitations, is not the last phase of the multistage scheme, but the commencement of the proceeding before the administrative body.
IV
The absence of inflexible time limitations on the bringing of lawsuits will not, as the company asserts, deprive defendants in Title VII civil actions of fundamental fairness or subject them to the surprise and prejudice that can result from the prosecution of stale claims. Unlike the litigant in a private action who may first learn of the cause against him upon service of the complaint, the Title VII defendant is alerted to the possibility of an enforcement suit within 10 days after a charge has been filed. This prompt notice serves, as Congress intended, to give him an opportunity to gather and preserve evidence in anticipation of a court action.
Moreover, during the pendency of EEOC administrative proceedings, a potential defendant is kept informed of the progress of the action. Regulations promulgated by the EEOC require that the charged party be promptly notified when a determination of reasonable cause has been made, 29 CFR § 1601.19b (b) (1976), and when the EEOC has terminated its efforts to conciliate a dispute, §§ 1601.23, 1601.26.
It is, of course, possible that despite these procedural protections a defendant in a Title VII enforcement action might still be significantly handicapped in making his defense because of an inordinate EEOC delay in filing the action after exhausting its conciliation efforts. If such cases arise the federal courts do not lack the power to provide relief. This Court has said that when a Title VII defendant is in fact prejudiced by a private plaintiff’s unexcused conduct of a particular case, the trial court may restrict or even deny backpay relief. Albemarle Paper Co. v. Moody, 422 U. S. 405, 424-425. The same discretionary power “to locate ‘a just result’ in light of the circumstances peculiar to the case,” ibid., can also be exercised when the EEOC is the plaintiff.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
The charge specified that the most recent act of discrimination was on October 1, 1970.
Civil Rights Act of 1964, §§706 (b), (d), 78 Stat. 259, 42 U. S. C. §§ 2000e-5 (b), (d); Love v. Pullman Co., 404 U. S. 522.
The 1972 amendments to Title VII were made applicable “with respect to charges pending with the Commission on the date of enactment.” § 14, 86 Stat. 113. The District Court also held that EEOC enforcement suits, such as this one, based on charges within the coverage of § 14 must be brought within 180 days of March 24, 1972, the effective date of the amendments.
The District Court’s decision is reported in 12 FEP Cases 1298.
Civil Rights Act of 1964, § 706 (a), 78 Stat. 259, 42 Ü. S. C. § 2000&-5 (a).
§ 706 (e), 42 U. S. C. § 2000e-5 (e).
86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. V), amending Civil Rights Act of 1964, 78 Stat. 253. All subsequent citations to Title VII in this opinion are to the 1964 Act as amended.
§ 706 (©), 42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V). If a charge has been initially filed with or referred to a state or local agency, it must be filed with the EEOC within 300 days after the practice occurred or within 30 days after notice that the state or local agency has terminated its proceeding, whichever is earlier. Ibid.
§ 706 (b), 42 U. S. C. § 2000e-5 (b) (1970 ed., Supp. V).
Ibid.
§ 706 (f) (1), 42 U. S. C. § 2000e-5 (f) (1) (1970 ed., Supp. V). In the case of a government, governmental agency, or political subdivision, the EEOC is required, upon failure of conciliation, to refer the case to the Attorney General who may then bring a civil action. Ibid.
The section in the House Committee bill provided, in relevant part:
“If (1) the Commission determines that there is no reasonable cause to believe the charge is true and dismisses the charge..., (2) finds no probable jurisdiction and dismisses the charge, or (3) within one hundred and eighty days after a charge is filed with the Commission..., the Commission has not either (i) issued a complaint..., (ii) determined that there is not reasonable cause to believe that the charge is true and dismissed the charge,... or (iii) entered into a conciliation agreement..., the Commission shall so notify the person aggrieved and within sixty days after the giving of such notice a civil action may be brought... by the person claiming to be aggrieved.... Upon timely application, the court may, in its. discretion, permit the Commission to intervene in such civil action if it certifies that the case is of general public importance. Upon the commencement of such civil action, the Commission shall be divested of jurisdiction over the proceeding and shall take no further action with respect thereof [sic]....” H. R. 1746, 92d Cong., 1st Sess., § 8 (j) (1971), reprinted in H. R. Rep. No. 92-238, pp. 54r-55 (1971).
Id., at 12.
H. R. 9247, 92d Cong., 1st Sess., §3 (c) (1971).
S. 2515, 92d Cong., 1st Sess., § 4 (a) (1971); S. 2617, 92d Cong., 1st Sess., §3 (c) (1971).
S. Rep. No. 92-415, p. 23 (1971).
Id., at 24, 40.
At one point in the debates Senator Javits, a sponsor of the Committee bill, sought to amend the substitute bill to clarify the relationship between EEOC and private lawsuits, by providing that “if within thirty days after a charge is filed with the Commission... the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall bring a civil action....” Senator Dominick objected to the substitution of the word “shall” for “may” and suggested that “in the interest of flexibility in the Commission’s schedule, and in the interest of flexibility in working something out through voluntary compliance, it would be far better to put in the word'may.’ ” In the exchange that followed, both Senators manifested their understanding that the 180-day provision in the Dominick amendment served the same purpose as the analogous provision in the Committee bill. 118 Cong. Rec. 1068-1069 (1972). Senator Javits later agreed to the use of the word “may,” and Senator Dominick responded as follows:
“I think this change is very meritorious, as I pointed out in my first statement. I do not think the Commission should be mandated on what date an agency should bring suit when we are trying to work out matters the best we can by conciliation.” Id., at 1069.
Id., at 4942.
Id., at 7168; see id., at 7565.
In addition to the Court of Appeals for the Ninth Circuit in the present case, six other Courts of Appeals have reached this conclusion. EEOC v. E. I. du Pont de Nemours & Co., 516 F. 2d 1297 (CA3); EEOC v. Cleveland Mills Co., 502 F. 2d 153 (CA4); EEOC v. Louisville & Nashville R. Co., 505 F. 2d 610 (CA5); EEOC v. Kimberly-Clark Corp., 511 F. 2d 1352 (CA6); EEOC v. Meyer Bros. Drug Co., 521 F. 2d 1364 (CA8); EEOC v. Duval Corp., 528 F. 2d 945 (CA10).
The two Courts of Appeals that have considered this question have reached differing conclusions. EEOC v. Kimberly-Clark Corp., supra, at 1359-1360 (state limitations not applicable); EEOC v. Griffin Wheel Co., 511 F. 2d 456 (CA5) (state limitations applicable to backpay suits only).
Since California has created a state agency with authority to provide a remedy for employment discrimination, Cal. Labor Code Ann. §§ 1410-1433 (West 1971), an aggrieved party in that State may file a charge with the EEOC as long as 300 days after the allegedly unlawful act. See n. 8, supra. Under § 706 (b) the EEOC may then take at least 120 days to investigate the charge and make its determination of reasonable cause. Thus, even if the aggrieved party and the EEOC act within the 420-day period expressly authorized by the Act, the California limitations period applied by the District Court would expire before the EEOC had an opportunity to begin any conciliation efforts, let alone bring a lawsuit.
In his testimony before the House Committee, William Brown III, Chairman of the EEOC, stated that as of February 20, 1971, there was a backlog of 25,195 pending charges. Equal Employment Opportunities Enforcement Procedures, Hearings on H. R. 1746 before the General Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 1st Sess., 81 (1971). By the time Chairman Brown testified before the Senate Committee, the backlog had increased to nearly 32,000 cases and further increases were expected. Equal Employment Opportunity Enforcement Act of 1971, Hearings on S. 2515, S. 2617, H. R. 1746, before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., 71 (1971).
See, e. g., 117 Cong. Rec. 31959 (1971) (remarks of Rep. Martin); id., at 31972 (remarks of Rep. Erlenborn); 118 Cong. Rec. 594^595 (1972) (remarles of Sen. Dominick); id., at 699-700 (remarks of Sen. Fannin) ; id., at 944 (remarks of Sens. Talmadge and Chiles); id., at 2386 (remarks of Sen. Allen); id., at 3136-3137 (remarks of Sens. Gurney and Allen); id., at 3969-3973 (remarks of Sens. Javits, Cooper, Dominick, Williams, and Allen).
The company contends that the numerous references in the debates to the EEOC’s backlog and delays demonstrate that by adopting the court enforcement plan Congress intended to restrict the time allowed for investigation and conciliation of a charge. Nearly all of the references, however, were in the context of discussions of whether enforcement after conciliation efforts had failed could be accomplished more expeditiously through an administrative process or through lawsuits in the federal courts. The concern, therefore, was with the additional delays that complainants would suffer if the EEOC were given the task of conducting its own hearings and issuing cease-and-desist orders. Congressional concern over delays during the investigation and conciliation process was resolved by providing complainants with the continuing opportunity to withdraw their cases from the EEOC and bring private suits. See Part II, swpra.
§§ 701 (a), (b), 702, 42 U. S. C. §§ 2000e (a), (b), 2000e-l (1970 ed., Supp. V). The number of state and local governmental employees who would be brought under the jurisdiction of the EEOC was estimated to be more than 10 million. 117 Cong. Rec. 31961 (1971) (remarks of Rep. Perkins); 118 Cong. Rec. 699 (1972) (remarks of Sen. Fannin). The elimination of the exemption for nonreligious educational institutions added an 'estimated 4.3 million employees. Id., at 4931 (remarks of Sen. Cranston).
§ 707 (c), 42 U. S. C. § 2000e-6 (e) (1970 ed., Supp. V).
§ 706 (f) (1), 42 U. S. C. § 2000e-5 (f) (1) (1970 ed., Supp. V).
The House bill provided that the EEOC serve notice of the charge on the alleged violator within five days; the Senate bill required notice within 10 days. Both bills included a 180-day limitation on an aggrieved party’s filing of a charge. S. Rep. No. 92-681, pp. 16-17 (1972).
Because the bill reported by the House Committee did not require notice of a charge within any specific time, the dissenters from the Committee Report urged that the 180-day filing limitation be amended to require the EEOC to give notice within five days, or some other reasonable time, after a charge had been filed. H. R. Rep. No. 92-238, p. 66 (1971). On the floor of the House, Congressman Erlenbom explained that the amendment was for the purpose of
“giving notice to the party charged [so] that he would have the opportunity to gather and preserve the evidence with which to sustain himself when formal charges are filed and subsequent enforcement proceedings are instituted.” 117 Cong. Rec. 31972 (1971).
The requirement of reasonable notice quickly received the support of proponents of the Committee bill. Id.,
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - taxes, patents, copyright - federal tax - business income tax (includes corporate and parnership). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES ex rel. ROBERTS et al. v. WESTERN PAC. R. CO. et al.
No. 12723.
United States Court of Appeals Ninth Circuit.
June 15, 1951.
Rehearing Denied July 23, 1951.
S. Roberts, in propria persona.
C. W. Dooling, San Francisco, Cal. (A. B. Dunne, Dunne, Dunne & Phelps, of counsel), San Francisco, Cal., for appellee.
Before STEPHENS, BONE and POPE, •Circuit Judges.
POPE, Circuit Judge.
This was an action brought by the appellant Roberts against the respondent Railroad Company, under those provisions of R.S. 3490, 3491, 3492, 5438, 57 Stat. 608, 31 U.S.C.A. §§ 231-233, 235, which authorizes the bringing of qui tam actions. Appellant sought to recover, on behalf of the United States, income and excess profits taxes of which, it was alleged, the United States was defrauded through the filing of false .and fraudulent tax returns.
Generally speaking the circumstances constituting the alleged fraud, are those set out in the opinion of the District Court in Western Pacific Railroad Corporation v. Western Pacific Railroad Company, 85 F.Supp. 868, which opinion is sought to be incorporated, by reference, in the complaint here. Thus, in the first of the three alleged causes of action, it is stated that in 1943, the defendant Railroad Company had a net taxable income in excess of 18 million dollars, on account of which it owed income and excess profits taxes of over 12 million dollars; that for the purpose of cheating and defrauding the Government, it caused false, fictitious and fraudulent consolidated income and excess profits tax returns to be made and filed in the name of, and purportedly by, the Western Pacific Railroad Corporation, upon the false claim that the latter corporation owned 95 per cent of the defendant Railroad Company’s stock. It was alleged that through this expedient the consolidated return was made to disclose a 75 million dollar loss, which more than wiped out the Railroad Company’s 18 million dollar profit. This loss arose out of certain pending proceedings for reorganization of the Railway Company under § 77 of the Bankruptcy Act, 11 U.S.C.A. § 205, in which a plan of reorganization, approved by the Interstate Commerce Commission in 1939, determined that the Company’s capital stock, substantially all of which was held by the above-mentioned Railroad Corporation, was without value, and that therefore the Corporation was not entitled to participate in the plan. Relying upon § 123 of the Revenue Act of 1942, 26 U.S.C.A. § 23(g) (4), the return showed the loss of the corporation’s stock in the company, for which it -had paid 75 million dollars, as an operating loss. Thus the consolidated return showed a large net loss.
The device of thus filing a consolidated return, using the stock loss as an offset to earnings of the defendant Railroad Company, was first used in the 1943 return. In 1942, the Company had also made substantial earnings, and for that year made return for itself and its own subsidiaries, and paid in excess of 4 million dollars pursuant to this return. In the third alleged cause of action, it is set forth that on March 9, 1945, the Railroad Company filed a claim for refund of this 1942 tax, based on a carry-back of the 1943 net loss.
The second alleged cause of action relates to asserted false and fraudulent returns for the year 1944 in which, it is alleged, the defendant Company managed to show no taxable income by carrying forward an additional portion of the claimed 1943 loss.
It appears from the complaint that following the filing of the claim for refund of the 1942 taxes, negotiations ensued between the taxpayer and the Government which eventuated in a settlement whereby the claim for refund was withdrawn and the consolidated returns for 1943 and 1944 were allowed to stand.
The complaint, not a model of pleading, in that it intermingles allegations of fact with many mere conclusions, appears to disclose as the principal representations claimed to have been made in connection with the filing of the returns, the following:
(a) That it was falsely claimed that the stock loss occurred in 1943, whereas it was a 1939 loss.
(b) That it was falsely represented that the Corporation (the Holding Company) made the return, whereas it had no part in it, in that the whole device was that of the defendant Company, which intended to obtain the exclusive benefit thereof.
(c) That it was falsely represented that the relationship between the two corporations was such that a consolidated return was permissible, whereas in truth and in fact the Railroad Corporation was not the owner of 95 per cent of the capital stock of the Railroad Company, but the two' corporations were, after 1939, complete strangers to each other, as ownership of defendant Railroad Company was then in the Bankruptcy Trustees.
The trial court sustained defendant’s motion to dismiss. Its order stated that it was the opinion of the court “that the complaint alleges sufficient facts from which it can be held that defendant * * * had made certain false or fraudulent claims against the Government * * * upon which liability might be found under the provisions of 31 U.S.C.A. § 231. However, it also appears from the complaint that this suit is based upon evidence and information in the possession of the United States and of agencies, officers and employees thereof at the time this suit was brought, and that all matters of fact alleged in the complaint as amended were matters of public record. For this reason this Court is without jurisdiction to proceed with the action and the motion to dismiss is hereby granted”
This determination that the court was without jurisdiction was based upon the provision of § 232 of Title 31, that “The court shall have no jurisdiction to proceed with any such suit brought under clause (B) or pending suit brought under this section whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.”
The court having thus found itself to be without jurisdiction to proceed, entered judgment dismissing the complaint. This appeal followed.
Appellant asserts that the court’s determination that the suit is based upon evidence and information in the possession of the United States, its agencies, officers and employees, could not be derived from any allegation of the complaint other than the one disclosing the fact that the case of Western Pacific Railroad Corporation v. Western Pacific Railroad Company, supra, had been tried before Judge Goodman, whose opinion is cited above. Appellant argues that a Federal Judge, particularly when sitting, as in this instance, in a case arising solely out of diversity jurisdiction, is not one of the agencies, officers or employees referred to in the portion of the statute upon which the court acted. This, it is said, must be true since the Judge is not an officer charged with doing anything about such information coming to him in a suit involving other issues. Appellant also argues that in no event may possession of such information by the United States oust the court of jurisdiction of the qui tam action unless the United States has proceeded to take some effective action based on the information.
Appellee asserts that the record sufficiently shows the possession of such information by the Bureau of Internal Revenue itself. It says this conclusion must be reached when the complaint is read in the light of the presumption that officers properly carry out the duties imposed upon them by law. Hence, appellee says, it is to be presumed, unless expressly negatived by the complaint, that the Bureau had ascertained all the facts pertaining to appel-lee’s liability for taxes.
The portion of the court’s order which we have quoted above does not indicate just what “agencies, officers and employees”, the court had in mind. It may be assumed the reference is solely to what transpired in the case tried before Judge Goodman.
We find it unnecessary to pass upon these conflicting views, for we have concluded that the statutes do not permit the maintenance of a qui tam action for the recovery of taxes due the United States under the circumstances here presented.
The controlling provisions are to be found in R.S. §§ 3490, 3491 and 5438. § 3490 provided that “Any person * * * who shall do or commit any of the acts prohibited by * * * section fifty-four hundred and thirty-eight, Title ‘Crimes,’ shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained * * This section has never been amended. Section 3491, in its original form, and as later amended, specified the venue for actions to recover such damages and permitted such actions to “be brought and carried on by any person, as well for himself as for the United States * Thus, it will be seen, the acts for which recovery may be had under §§ 3490 and 3491, are defined in § 5438. This section, in itself, solely a criminal provision, is set forth in the margin.
It is noted that the key language is: “Every person who makes * * * any claim upon or against the Government * * * knowing such claim to be false, fictitious, or fraudulent,” etc. Speaking of this phraseology as incorporated in § 35 of the Penal Code of 1910, the Supreme Court said, in United States v. Cohn, 270 U.S. 339 at page 345, 46 S.Ct. 251, 253, 70 L.Ed. 616: “the provision relating to the payment or approval of a ‘claim upon or against’ the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government’s own liability to the claimant.” We find in § 5438 no language appropriate to describe a false tax return or a fraudulent evasion of a tax liability. It is true that the complaint discloses that the Railroad Company, after first paying its 1942 taxes, filed a claim for refund, based upon the same facts which were set forth in the returns for 1943 and 1944. This claim was withdrawn, but the withdrawal was the consideration for the Government’s agreement to let the 1943 and 1944 returns stand. While such claim for refund might, of course, constitute a “claim upon or against the Government”, to treat it as such within the meaning of the statutes here involved would produce the rather anomalous result that while no qui tarn action could be brought under these sections to recover the amount of taxes fraudulently withheld, yet such a claimant could prevail where the defendant had first paid the taxes and then procured a fraudulent refund, even although the fraud against the revenue was the same in each case.
That no such incongruous consequences were intended by Congress, and that in respect to tax frauds the legislative purpose was not to permit an action of the kind here involved, under the circumstances here present, to be maintained by an individual, at least without express consent of the Commissioner of Internal Revenue, is apparent from the provisions of the Internal Revenue Code, § 3740, 26 U.S.C.A. § 3740, which reads as follows: “No suit for the recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Commissioner authorizes or sanctions the proceedings and the Attorney General directs that the suit be commenced.” 53 Stat. 460.
When to the fact that the language of § 3490 is generally inapt for application to tax frauds, as we have suggested above, there is added the explicit language just quoted, it seems apparent that this action may not be maintained. There is no showing of the required authorizations.
Our conclusion to this effect is supported by the authority of Olson v. Mellon, D.C. W.D.Pa., 4 F.Supp. 947, the opinion in which was adopted and affirmed in U. S. ex rel. Knight v. Mellon, 3 Cir., 71 F.2d 1021, certiorari denied 293 U.S. 615, 55 S.Ct. 147, 79 L.Ed. 704. In that case the argument had been made that the type of transactions to which R.S. § 3490 applied, had been enlarged by a later amendment of § 5438 as incorporated in § 35 of the 1910 Penal Code. The court pointed out why such was not the case. It noted that § 231 of Title 31 of the 1927 edition of U.S.C.A., and' which was intended to be the United States Code statement of § 3490, was in error in its reference to “section 80 of Title 18”, since the latter was not, as the “editorial comment” disclosed, identical with the original text of § 5438.
As for R.S. § 3214, as now included in § 3740 of the Internal Revenue Code, supra, that court held, as do we, that its language expressly prohibits the commencement of an action such as this where it has not been authorized or sanctioned by the Commissioner and the Attorney General. We perceive no reason why it should be held to mean anything other than what it says.
The judgment is affirmed.
. The plan, was approved by the District Court in 1940, this court reversed in 1941, In re Western Pac. R. Co., 9 Cir., 124 F.2d 136, but was itself reversed in 1943 in Ecker v. Western Pac. R. R. Corp., 318 U.S. 448, 63 S.Ct. 692, 87 L.Ed. 892, which affirmed the District Court’s order.
. As explained in footnote 3 of the opinion in Western Railroad Corporation v. Western Pacific Railroad Company, supra, 85 F.Supp. 868, at p. 870, “By this subsection, losses resulting from worthlessness of stock of an affiliate became operating losses instead of capital losses as theretofore.”
. This language of the Act, added in 1943, would appear to be the result of the dissent of Mr. Justice Jackson in U. S. ex rel. Marcus v. Hess, 317 U.S. 537, 556, 63 S.Ct. 379, 87 L.Ed. 443.
. Implicit in the court’s opinion that the complaint sufficiently alleges false claims “upon which liability might be found”, is a finding that the tax officials were deceived because ignorant of the facts misrepresented. Nothing in the complaint would show that the deceived tax officials discovered the facts before the commencement of the instant action. The complaint, however, does disclose that Judge Goodman became aware of the facts.
. It was amended in 1936, 49 Stat. 1921, and in 1943, 57 Stat. 608. The latter included the change referred to in footnote 3, supra.
. This section was superseded by § 35 of the Penal Code of 1910. See explana- • tory note to that section.
. Title LXX, Crimes, Ch. 5, § 5438, Mar. 2, 1863, c. 67, §§ 1, 3, 12 Stat. pp. 696, 698. “Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fi-audulent claim, or who, having charge, possession, custody, or control of any money or other public property used or to be used in the military or naval service, who, with intent to defraud the United States or willfully to conceal such money or other property, delivers or causes to be delivered, to any other person having authority to receive the same, any amount of such money or other property less than that for which he received a certificate or took a receipt, and every person authorized to make or deliver any certificate, voucher, receipt, or other paper certifying the receipt of arms, ammunition, provisions, clothing, or other property so used or to be used, who makes or delivers the same to any other person without a full knowledge of the truth of the facts stated therein, and with intent to defraud the United States, and every person who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, sailor, or other person called into or employed in the military or naval service any arms, equipments, ammunition, clothes, military stores, or other public property, such soldier, sail- or, officer, or other person not having the lawful right to pledge or sell the same, every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.”
. As Judge Goodman put it, in his opinion: “For $4,144,828, the United States released $21,346,567 in taxes upon a basis which is completely incomprehensible.” [85 F.Supp. 873.]
. The portion of this section, to and including the word “proceedings”, was a part of R.S. § 3214.
. A revised version of § 231 appears in the “Pocket Part” of Title 31, without clue as to the. source of this tex;t other than reference to R.S. §§ 3490 and 5438.
. The history of the legislation relating to detection of frauds in respect to revenue due the Government indicates that a system of rewarding informers was considered the desirable means of procuring aid from private persons, and that the statutory scheme was that actions to redress such frauds were to be kept within the control of the Commissioner and the Attorney General. § 3792 of Title 26, now authorizes such rewards to informers. In the Act of 1866, 14 Stat. 111, which first contained the requirement of the Commissioner’s authorization, later carried forward into R.S. § 3214, supra, there was a similar provision, § 179, 14 Stat. 145, authorizing rewards to informers. The present § 3792 of Title 26 probably grow out of the Act of March 2, 1867, 14 Stat. 473. When that Act, appropriating money for the reward of informers as to tax frauds, was under consideration by Congress, an amendment was added in the House authorizing qui tam actions by such informers, but the amendment was stricken by the Senate, where the-opinion was expressed that such an authorization would lead to abuse which, “should be guarded against”. See references to H.R. 1161, in Cong.Globe, 39th Cong. 2d Sess. pp. 1545, 1918, 1919.
Question: What is the second general issue in the case, other than economic activity and regulation - taxes, patents, copyright - federal tax - business income tax (includes corporate and parnership)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
FRANKLIN TP. IN SOMERSET COUNTY, N.J., et al. v. TUGWELL, Administrator Resettlement Administration, et al.
No. 6619.
United States Court of Appeals for the District of Columbia.
Decided May 18, 1936.
Dean G. Acheson, Spencer Gordon, and Edward B. Burling, all of Washington, D. C., for appellants.
Ralph S. Boyd, of Washington, D. C., and Allan D. Jones, of Newport News, Va., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellants, plaintiffs below, filed a bill in equity in the Supreme Court of the District of Columbia seeking to restrain defendant Tugwell, Administrator of the Resettlement Administration, and other government officers from acquiring certain privately owned lands in the township of Franklin, Somerset county, N. J. The lower court granted defendants’ motion to dismiss the bill, and from that decree plaintiffs appeal.
The authority of defendants is claimed under the Emergency Relief Appropriation Act of 1935 (49 Stat. 115 [15 U.S.C.A. § 728 note]) and Executive Orders Nos. 7027 and 7200, dated April 30, 1935, and September 26, 1935, respectively.
It is averred in the bill, and by. the motion to dismiss admitted, that the township of Franklin is a municipal corporation organized and existing under the laws of New Jersey, possessing the usual powers of such corporations, and deriving its revenues “almost exclusively from the inhabitants within its limits and the property located therein”; “the major portion of such revenues” being received from taxes on real estate. It is alleged that the board of education of Franklin township is a corporation organized- and existing under the laws of New Jersey, charged with the duty of providing educational facilities for the inhabitants of the township, and deriving its revenues almost exclusively from the tax funds collected by the township. The plaintiffs Suydam, Van Cleef, Martin, Brill, and Alsop are property owners and taxpayers in the township.
It appears from the averments of the bill of complaint that the Resettlement Administration contemplates the erection within the township of a so-called “model community.” It is the plan of the Resettlement Administration, acting through the Administrator, to purchase a large area in said township and to erect thereon single and multiple dwelling houses to accommodate approximately 750 families, and to remove into the “model community” families from congested areas in near-by manufacturing cities, low rentals being one of the principal inducements to be offered by the proposed community.
It is further averred that agents of the Resettlement Administration are securing options from owners of a large part of the real property in the area sought to be acquired; that ultimately they will pay for these lands with funds of i he United States, and upon the lands so acquired the “model community” will be constructed; and that, unless they are immediately restrained, the offers to sell will be accepted by the agents, who will then take deeds for the lands covered thereby.
It is further alleged that the rentals to be charged for the houses constructed by the Administration will be at the rate of four to five dollars a month per room, which will provide a return sufficient only to meet the costs of operation and maintenance; that the Administration will erect stores and shops at the center of riie proposed community, build public roads across it, construct a system of parkways and recreation grounds surrounding the proposed development; that the Administration will pursue a policy of resettling urban industrial workers of low income on this development, and of providing better homes for persons now living in houses deemed by the Administration to be of inferior quality, and that virtually no opportunities will be furnished for employment of such persons in the township in connection with the so-called "model community.”
It is also alleged that the township has at present a population of approximately 6,500, the bulk of which is rural and wide-y scattered, that under the proposed plan the Administration will bring into the township 750 families, and that eventually more will be brought in to live upon further developments, and that this will result in an immediate increase in the population of the township of at least 3,000 persons, with the threat on the part of the Administration vigorously to push this project to completion.
It is further averred that, unless the defendants are immediately restrained from performing their threatened acts, the township will immediately lose approximately one-fourth in area of the taxable real estate, and approximately one-fourth of the value of the taxable real estate in the township, and ultimately will lose three-fifths in area of its taxable real estate and approximately three-fifths of the value of its taxable real estate; that the proposed community will separate the township into two parts, and will impair the township’s ability to discharge its municipal duties in the separated portions remaining under its control; that the division of its territory will greatly increase the cost of discharging its duties; that, because of this increase in population, the duty will be imposed upon the township of providing increased health, police, and fire protection; that the expense of maintaining the proposed roads to be constructed in the community by the Administration will devolve upon the township; that the cost of maintaining the present roads in the township will be greatly increased by reason of the additional population; and that, in general, all costs of discharging the duties of local government, imposed upon the township, will be greatly increased, especially in the matter of furnishing educational facilities, which are already inadequate.
It is also averred that, under the laws of New Jersey, all real estate in the township taxable for the year 1936 was assessed and tabulated on October 1, 1935, and no other assessment or tabulation can, under the law, be made until October 1, 1936; that in 1936 the amount which the township will be required to pay to the county of Somerset on account of taxes for county purposes upon land within the township, assessed and tabulated as of October 1, 1935, will be approximately $54,-000, “which amount the Township must pay in 1936 by reason of said assessment and tabulation, irrespective of whether taxes are collectable or collected”; that, if the land in question is taken and title placed in the United States, taxes cannot be. collected thereon, and the township will lose one-fourth of the revenues normally received for its own needs (approximately $10,000), and in addition will lose $13,500, the amount for which the township must account as taxes on said lands, “and which said Township must pay to said County out of the balance of the revenues normally received for its own needs,” thus suffering “an irretrievable loss of approximately $23,500.00/ if the said lands are removed from liability for taxes in and for the year 1936.”
It is further averred that the board of education will lose a large portion of the sources of revenue for discharge of its duties, because of the loss of taxes suffered by the township, and at the same time will be forced to assume added educational burdens. It is also averred that each of the individual plaintiff taxpayers will suffer an increase in taxation, and that the rental- value of property now being leased by plaintiff Alsop and by the township will be depressed because of low rentals offered by the Resettlement project.
It is then averred that defendants are wholly without authority to do any of the acts which they threaten, in that the Resettlement program is not authorized 'by the Emergency Relief Appropriation Act of 1935, or by any other law of the United States; and that the Emergency Relief Appropriation Act of 1935 is unconstitutional, being repugnant to article 1, § 1; art. 1, § 8, clauses 1, 2 and 18; art. 1, § 9, clause 7; art. 2, § 1, and the Tenth Amendment of the Constitution.
It is urged by counsel for defendants that plaintiffs cannot maintain this action because it is, in effect, a suit against the United States, which has not consented to be sued. We are not impressed by this contention. The action here is one to restrain agents of the United States from performing allegedly illegal acts. The authority of the agents to do the things of which complaint is made is challenged. That such a suit is not one against the United States, but against the officials who are threatening performance of such illegal acts, is well settled. Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 620, 32 S.Ct. 340, 56 L.Ed. 570; Lane v. Watts, 234 U.S. 525, 540, 34 S.Ct. 965, 58 L.Ed. 1440; Payne v. Central Pac. Ry. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598.
In the Stimson Case the Supreme Court stated the rule as follows (223 U.S. 605, at pages 619, 620, 32 S.Ct. 340, 344, 56 L.Ed. 570):
“The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. Little v. Barreme, 2 Cranch, 170, 2 L.Ed. 243; United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 27 L.Ed. 171, 181, 182; Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 40 L.Ed. 599, 601; Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Scranton v. Wheeler, 179 U.S. 141, 152, 21 S.Ct. 48, 45 L.Ed. 126, 133. And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with respect to state officers seeking to enforce unconstitutional enactments. [Citing cases.] And it is equally applicable to a Federal officer acting in excess of his authority or under an authority not validly conferred. Noble v. Union River Logging R. R. Co., 147 U.S. 165, 171, 172, 13 S.Ct. 271, 37 L.Ed. 123, 125, 126; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90.
“The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.”
Defendants further contend that the property owners who have given options on their property are indispensable parties to this suit. It is urged that, since agents of the Resettlement Administration hold offers to sell from various landowners within the area of the proposed project, any decree rendered herein would affect the interests of these landowners, and that therefore they are indispensable parties.' Defendants overlook the fact that this suit is based upon an alleged total lack of authority in the Resettlement Administration and its agents to solicit or accept these offers to sell. If these agents are without any authority to purchase the lands, the offers are a nullity, and restraint from performing the illegal acts can in no way affect or damage the parties on whose property options have been given. In Cherokee Nation v. Hitchcock, 187 U.S. 294, at page 300, 23 S.Ct. 115, 117, 47 L.Ed. 183, the Court said: “As the bill assailed generally the want of power in the Secretary of the Interior to execute leases affecting lands owned by the tribe, and referred to the application pending for a lease made by the Cherokee Oil & Gas Company, as manifesting but a particular instance in which it was charged that the Secretary of the Interior might exercise the power conferred by the statute, the corporation named was not an indispensable party to the bill. Clearly, all the persons with whom the Secretary might contract, if he exercised the discretion vested in him by the statute, were not indispensable parties to the determination of the question whether the statute had lawfully conferred such discretionary power upon the official in question.”
We come now to the objection of defendants that the township and the board of education have no capacity or justiciable interest which will enable them to maintain this suit to protect their governmental as distinguished from their proprietary interests. Defendants in this connection rely mainly upon the case of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471. In that case the state of New Jersey recovered a judgment against the city of Trenton under a state statule controlling the taking of water from the Delaware river. The city claimed that this statute was unconstitutional in that it took property owned by the city in its proprietary capacity without due process. The Supreme Court, in dismissing the’ writ of error sued out by the city, said (262 U.S. 182, at pages 191, 192, 43 S.Ct. 534, 538, 67 L.Ed. 937, 29 A.L.R. 1471): “The distinction between the municipality as an agent of the state for governmental purposes and as an organization to care for local needs in a private or proprietary capacity has been applied in various branches of the law of municipal corporations. * * * Recovery is denied where the act or omission occurs in the exercise of what are deemed to be governmental powers, and is permitted if it occurs in a proprietary capacity. The basis of the distinction is difficult to state, and there is no established rule for the determination of what belongs to the one or the other class. It originated with the courts. Generally it is applied to escape difficulties, in order that injustice may not result from the recognition of technical defenses based upon the governmental character of such corporations. But such distinction furnishes no ground for the application of constitutional restraints here sought to be invoked by the city of Trenton against the' state of New Jersey. They do not apply as against the state in favor of its own municipalities.”
It is clear under the decision in this case that, if the state of New Jersey were substituted for the officers of the United States in the Resettlement program, the township and board of education could not maintain this suit, regardless of whether their claimed interests were governmental or proprietary. But this situation would obtain by reason of the fact that the township and board of education are merely political subdivisions of the state of New Jersey, from which they derive their existence and powers, and which may terminate their existence at any time. This reasoning, however, in no way prevents these corporations from maintaining suit against officials of the United States, a sovereign separate and distinct from the state of New Jersey.
We think the township’s interests which may be denominated governmental involve much more than the mere matter of taxation. The impairment of its powers in the exercise of its franchise is the chief subject of concern. It may be conceded that the reduction in its tax receipts, involved in the loss of realty by reason of the establishment of the model community, can be remedied by increasing its tax rate, with the additional burden falling upon the individual taxpayers. Florida v. Mellon, 273 U.S. 12, 18, 47 S.Ct. 265, 71 L.Ed. 511. A very different question arises, however, when we consider the impairment of the township’s corporate functions by the separation and reduction of the property which is left to it. We are of opinion that this interest, though governmental, may be invoked to enable the township to maintain this suit. The Supreme Court, in the case of Re Debs, Petitioner, 158 U.S. 564, 583, 584, 15 S.Ct. 900, 906, 39 L.Ed. 1092, said:
“Neither can it be doubted that the government has such an interest in the subject-matter as enables it to appear as party plaintiff in this suit. It is said that equity only interferes for the protection of property, and that the government has no property interest. A sufficient reply is that the United States have a property in the mails, the protection of which was one of the purposes of this bill. * * *
“We do not care to place our decision upon this ground alone. Every government, intrusted by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter, The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court."
While the national government was involved in the Debs Case, the words “every government” appear to be broad enough to include a state, or a political subdivision of a state, such as the municipality here involved, which it is alleged is “charged by. law with the duty of providing for its inhabitants adequate police and fire protection, sewage and garbage disposal, maintenance of public roads, education facilities, care of the poor, zoning of the use of property within its limits, and the other normal incidents of local government.”
We think that the case of People v. Ingersoll, 58 N.Y. 1, 17 Am.Rep. 178, conclusively sustains the township’s position. In that case suit was brought by the state of New York to recover money of which the county of New York had been defrauded. It was held that only the county could maintain the suit. The court specifically stated that the “trusteeship and corporate power [of the County], as a pecuniary and fiduciary relation, extends to and embraces not only the tangible property of the corporation, but the franchises and powers conferred for raising moneys and other means for the support of the local government and the use of the inhabitants of the county, and to the means realized from the franchises and powers conferred.” The court further held that, while there could not be a claim in both the county and the state, and though the county is entirely subject to the state, yet, “when grants, whether of rights or of power, are conferred by the legislature they are held absolutely, and to be enjoyed and exercised independently, subject only to' the general laws of the State, the terms and conditions annexed to the grant; withdrawn or modified by the legislature."
Aside from its governmental interests, however, the township has a proprietary interest which would enable it to maintain this suit. It is the owner of real property within ‘its limits which it leases to a private individual, the value of which property the township alleges is threátened with impairment. Unquestionably this interest is proprietary. Ferguson v. Arthur, 117 U.S. 482, 487, 6 S.Ct. 861, 29 L.Ed. 979.
Coming now to a consideration of whether or not the board of education may maintain this suit, it appears that it has no proprietary interest as' has the township. It further appears that in the discharge of its duties the necessary funds are paid over to it by the treasurer of the township, which is primarily responsible for providing educational facilities for its inhabitants. While the board is a corporation with power to sue and be sued, it is subsidiary to, and dependent upon, the township. It is in fact an agency of the township, and possesses no governmental interests distinct from those of the township, No claim is made that the corporate franchise of the board will be impaired. No territory will be taken from its jurisdiction. The fact is that it will still have exercise its functions and perform its duties with respect to the same territory as before. The only complaint is that it will have to provide additional school facilities, but for this purpose it will merely call upon the township for additional funds. We are of opinion that the board of education is without capacity to maintain this suit.
At this point it is proper to consider an objection interposed by defendants that the township cannot maintain this suit since it is brought outside the state of New Jersey. Defendants, in support of this objection, rely upon the case of Moore v. Mitchell, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673, wherein it was held that the treasurer of a county in Indiana could not maintain suit to collect taxes in a federal District Court in New York. This case, we think, is not in point. The township is not a mere arm of a foreign state, seeking to enforce a claim arising under the laws of a foreign jurisdiction, but a juristic person, having a franchise and proprietary interest. to protect. We think that the township may maintain this suit against the defendants, who reside in the District of Columbia and can be served with process only there.
We come now to a consideration of the capacity of the individual plaintiffs to maintain this action, and of their justiciable interests. The mere claim that the rental value of the property now being leased by plaintiff Alsop will be depressed because of low rentals offered by the Resettlement project constitutes, in our opinion, no legal injury to her. No legal right of hers is invaded. It is merely damnum absque injuria. New Orleans, M. & T. Railroad Co. v. Ellerman, 105 U.S. 166, 26 L.Ed. 1015; United States ex rel. New York Warehouse, Wharf & Terminal Ass’n, Inc., et al. v. Dern, 63 App.D.C. 28, 68 F.(2d) 773.
A different conclusion, however, must be reached as to the claim of the individual plaintiffs, as taxpayers, that, by reason of the acquisition of title to these lands by the United States, they will be compelled to pay greatly increased taxes. The taxpayers of a municipality have a direct interest in the application of its moneys. Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L.Ed. 1070; Frothingham v. Mellon, 262 U.S. 447, 486, 43 S.Ct. 597, 67 L.Ed. 1078.
We are not unmindful of the general rule which recognizes that a federal taxpayer has an interest in the moneys in the Treasury, but denies individual federal taxpayers relief on the ground that their interest is “comparatively minute and indeterminable.” It is held that the effect upon future federal taxation of any payment out of federal funds is “so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Frothingham v. Mellon, supra, 262 U.S. 447, at page 487, 43 S.Ct. 597, 67 L.Ed. 1078; Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, 78 L.Ed. 1109. The Court pointed out in the Frothingham Case that a federal taxpayer shares his interest with millions of other taxpayers, and said (262 U.S. 447, at page 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078):
“The party who invokes the power must be able to- show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”
We think that the facts in the case at bar distinguish it from the Frothing-ham and Magnano Cases, which are cited by defendants as authorities for the proposition that the individual plaintiffs have no interest which will sustain this suit. In those cases the individual was a taxpayer in the same position as millions of other citizens paying federal taxes. In the case at bar the plaintiffs are taxpayers in a municipality having a population of only 6,500 (many of whom are not taxpayers) the chief portion of the revenues of which is derived from taxes on real estate.
The interest of the municipal taxpayer arises from his liability to increased taxation. The attempted creation of a debt by a municipality, or some other action which is likely to cause an increase in the tax burden, may be challenged by the individual taxpayer. Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070; Mayor and City Council of Baltimore v. Employers’ Ass’n of Maryland, 162 Md. 124, 159 A. 267. It has been held in many cases that, where there is an attempt on the part of a city to extend its boundaries to include the property of one located in another taxing district, the property owner may enjoin the effort, if it be illegal, on the ground of increase in his taxes. Layton v. Mayor and Council et al. of City of Monroe, 50 La.Ann. 121, 23 So. 99; Sharkey v. City of Butte, 52 Mont. 16, 22, 155 P. 266; Morris v. City of Nashville, 74 Tenn.(6 Lea) 337; City of Delphi et al. v. Startzman et al., 104 Ind. 343, 3 N.E. 937. On the same principle it has been held that, where a detachment of property from a municipality will throw upon the remaining taxpayers the full burden of municipal indebtedness, not only the municipality, but the remaining taxpayers, may be heard in a court of equity to resist the detachment. The City of Galesburg v. Hawkinson et al., 75 Ill. 152.
While these cases relate to suits by taxpayers against the municipality to prevent an injury which is threatened by the municipality, we see no distinction where, as in the present case, the same injury is threatened by the action of an outside agency. The injury to the citizen is the same, and the right to prevent the injury should be the same, whether it is threatened by the municipality or by some other governmental agency.
We think, therefore, that the owners of real property in this municipality will suffer such a direct and immediate injury from the detachment of a large portion of the taxable property of the township, and the resulting increase in taxation, as will give them a standing in a court of equity to contest the legality of the proposed action of the defendants.
Defendants insist that we should not, on this appeal, consider the constitutional questions involved, but that, should it be decided that the plaintiffs or any of them can maintain this suit, the decree should be reversed and the case remanded for answer and trial upon the merits.
As grounds for the motion to dismiss in the court below it was alleged that: “The Emergency Relief Appropriation Act of 1935 is a valid and lawful exercise of the legislative power, not in conflict with any provision or prohibition of the Constitution of the United States”; and that: “The action taken and proposed by these defendants in respect of the specified Resettlement Project was pursuant to authority lawfully conferred and not in excess thereof, and such action does not and will not violate any constitutional rights of plaintiffs.”
The trial justice filed no written opinion, and his final decree dismissing the bill of complaint does not indicate upon what ground he based his decision. It must be assumed upon this record that he considered and decided all questions raised by the motion to dismiss, including the question of the constitutionality of the Emergency Relief Appropriation Act of 1935.
By that act (section 1 [15 U.S.C.A. § 728 note]), Congress appropriated the sum of $4,880,000,000 to be available for the following classes of projects: “(a) Highways, roads, streets, and grade-crossing elimination, $800,000,000; (b) rural rehabilitation and relief in stricken agricultural areas, and water conservation, trans-mountain water diversion and irrigation and reclamation, $500,000,000; (c) rural electrification, $100,000,000; (d) housing, $450,000,000; (e) assistance for educational, professional and clerical persons, $300,000,000; (f) Civilian Conservation Corps, $600,000,000; (g) loans or grants, or both, for projects of States, Territories, Possessions, including subdivisions and agencies thereof, municipalities, and the District of Columbia, and self-liquidating projects of public bodies thereof, where, in the determination of the President, not less than twenty-five per centum of the loan or the grant, or the aggregate thereof, is to be expended for work under each particular project, $900,-000,000; (h) sanitation, prevention of soil erosion, prevention of stream pollution, sea coast erosion, reforestation, forestation, flood control, rivers and harbors and miscellaneous projects, $350,000,000: Provided further, That not to exceed 20 per centum of the amount' herein appropriated may be used by the President to increase any one or more of the foregoing limitations if he finds it necessary to do so in order to effectuate the purpose of this joint resolution.”^
The act (sections 4 — 6) then provides: “In carrying out the provisions of this joint resolution the President is authorized to establish and prescribe 'the duties and functions of necessary agencies within the Government * * * to acquire, by purchase or by the power of eminent domain, any real property or any interest therein, and improve, develop, grant, sell, lease (with or without the privilege of purchasing), or otherwise dispose of any such property or interest therein.” And: “The President is authorized to prescribe such rules and regulations as may be necessary to carry out this joint resolution, and any willful violation of any such rule or regulation shall be punishable by fine of not to exceed $1,000.”
It is further provided by the act (section 7) that the President shall have power to fix the rates of wages that shall be paid persons employed on any of the projects provided for in the act, and that a report shall be submitted to the Congress which shall include “a statement of the expenditures made and obligations incurred, by classes and amounts.” Section 15.
Executive Order No. 7027 provides, among other things: “By virtue of and pursuant to the authority vested in me. under the Emergency Relief Appropriation Act of 1935, approved April 8, 1935 (Public Resolution No. 11, 74th Congress), I hereby establish an agency within the Government to be known as the ‘Resettlement Administration,’ and appoint Rex-ford G. Tugwell, Under Secretary of Agriculture, as Administrator thereof, to serve without additional compensation.”
In Executive Order No. 7200 the President prescribes the functions and duties of the Resettlement Administration, to be performed by the Administrator, as follows : “To administer approved proj ects involving rural rehabilitation, relief in stricken agricultural areas, and resettlement of destitute or low-income families from rural and urban areas, including the establishment, maintenance, and operation, in such connection, of communities in rural and suburban areas.”
The Administrator is authorized by Executive Order No. 7027 “to acquire, by purchase or by the power of eminent domain, any real property or any interest therein and improve, develop, grant, sell, lease (with or without the privilege of purchasing), or otherwise dispose of any such property or interest therein.”
It is urged by plaintiffs that this act, in so far as it affects them, violates section 1 of article 1 of the Constitution, which provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”; and clause 18 of section 8 of article 1, which provides: “The Congress shall have Power * * * to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
It is axiomatic in constitutional law that Congress cannot delegate the lawmaking power with which it is vested by the Constitution. It may, however, lay down policies and establish standards, leaving to selected instrumentalities the making of subordinate rules within prescribed limits, the filling up of details, and the determination of facts to which the policy as declared by the Legislature applies.
The Supreme Court had occasion to consider this question exhaustively in the case of Panama Refining Co. v. Ryan, 293 U.S. 388, 414, 55 S.Ct. 241, 79 L.Ed. 446. That case involved the constitutionality of section 9 (c) of the National Industrial Recovery Act (15 U.S.C.A. § 709 (c), which provided: “The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage m excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State.”
In holding that this section was an unconstitutional delegation of legislative power, the. Court laid down a threefold test, to wit: Whether Congress has declared a policy with respect to the subject; whether Congress has set up a standard for the President’s action; whether Congress has required any'finding by the President in the exercise of the authority conferred.
Tn determining whether the statute met these requirements, the Court said (293 U.S. 388, at pages 415, 430, 55 S.Ct. 241, 246, 79 L.Ed. 446):
“It [Section 9 (c)] establishes no criterion to govern the President’s course. It does not require any finding by the President as a condition of his action. The Congress in section 9 (c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. * * *
“Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.”
In Schechter Poultry Corp. v. United States, 295 U.S. 495, 529, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, the Supreme Court again had before it the question of delegation of power, in connection with section 3 of the National Industrial Recovery Act (15 U.S.C.A. § 703), which provided that “codes of fair competition,” which should be the “standards of fair competition” for the trades and industries to which they relate, might be approved by the President upon application of representative associations of the trades or industries to be affected, or which might be prescribed by him on his own motion; that their provisions were to be enforced by injunctions from the federal courts, and “any violation of any of their provisions in any transaction in or affecting interstate commerce” was to be deemed an unfair method of competition within the meaning of the Federal Trade Commission Act (15 U.S.C.A. § 41 et seq.), and was to be punished as a crime against the United States; that, before approving, the President was to make certain findings as to the character of the association presenting the Code and absence of design to promote monopoly or oppress small enterprises, and had to find that it would “tend to effectuate the policy of this title”; that the President might “impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees and others, and in the furtherance of the public interest,” and might “provide such exceptions and exemptions from the provisions of such code” as he, in his discretion, deemed necessary “to effectuate the policy herein declared.”
The Court, without trifling with any findings of fact, where no statements of fact could throw
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_state
|
14
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES v. OLDENBURG.
No. 8103.
Circuit Court of Appeals, Seventh Circuit.
May 18, 1943.
Edward J. Hess, of Chicago 111., for appellant.
J. Albert Woll, U. S. Atty., and Thomas B. Hart, Sp. Asst, to U. S. Atty., both of Chicago, 111., for appellee.
Before MAJOR, KERNER and MIN-TON, Circuit Judges.
MAJOR, Circuit Judge.
The defendant, along with five others, was charged by an indictment returned May 1, 1940, with violating 18 U.S.C.A § 338 (using the mails to defraud), 15 U.S.C.A. § 77q (using the mails to defraud in sale of securities), and 15 U.S.C.A. § 77e (using mails in sale of unregistered securities). This appeal is from a judgment of conviction, entered July 3, 1942.
Defendant Oldenburg’s indictment and sentence resulted from his .association and connection with an organization known as Universal Order of Plenocrats. This Court has heretofore had occasion to discuss the method of its operations. The conduct complained of in the instant case is similar to that related in Securities and Exchange Commission v. Universal Service Association, et al., 7 Cir., 106 F.2d 232, and there is no need to review the activities which were previously condemned. This Court held in that case that certificates similar to those sold by defendant for the Universal Order of Plenocrats were securities under the Securities Exchange Act, 15 U.S.C.A. § 77b, et seq. The Court also enjoined certain of the named defendants (not appellant) from certain fraudulent representations in the further sale of such certificates. It is admitted that defendant had knowledge of this prior suit and of the injunction issued therein. The same practice which we have previously condemned as fraudulent and as a misrepresentation is clearly shown in the instant case, and without doubt discloses a scheme to defraud.
The only question seriously urged on this appeal is whether defendant knowingly participated in the scheme to defraud. That such was the fact is conclusively demonstrated by appellant’s own admissions. Defendant admitted that he knew of the prior suit and injunction; he admitted that he was at one time president of the Universal Order of Plenocrats; he admitted that as a real estate broker he had knowledge of the value of farm land; he admitted selling certificates subsequent to the issuance of the injunction; he admitted soliciting memberships after being informed of the Universal Order of Plenocrats’ insolvency. Defendant’s name also appeared on the letterhead of the order as a member of the National Board of Managers. In view of these admissions, it is inconceivable that the defendant was without knowledge of the fraudulent scheme and that he did not participate therein.
It is also pointed out that the government failed to offer any proof that the securities described in counts 19 to 24 of the indictment were not registered. As the sentence imposed, however, was no greater than that which could have been imposed on any other one count of the indictment, we need not consider this point.
Defendant’s further contention that he honestly believed that which the Universal Order of Plenocrats taught and the ideas disseminated by him, does not justify his fraudulent activities. Moore v. United States, 7 Cir., 2 F.2d 839; Linn v. United States, 7 Cir., 234 F. 543; Pandolfo v. United States, 7 Cir., 286 F. 8.
For the foregoing reasons, the judgment imposed by the District Court must be affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
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.
Burns TRUSTY, Jr., Appellant, v. The STATE OF OKLAHOMA and Ray Page, Warden, State Penitentiary, Appellee.
No. 8594.
United States Court of Appeals Tenth Circuit.
May 5, 1966.
Arthur J. Movius, Denver, Colo., for appellant.
Charles L. Owens, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., on the brief), for appellee.
Before PICKETT, HILL and SETH, Circuit Judges.
HILL, Circuit Judge.
Appellant, an inmate of the Oklahoma State Penitentiary, appeals from a denial of his petition for a writ of habeas corpus without an evidentiary hearing. There is no question about exhaustion of state remedies.
Trusty was tried and convicted, after a jury trial, in the District Court of Tulsa County, Oklahoma, for the crime of burglary in the second degree. He is now confined and serving a sentence pursuant to that conviction. Following the conviction and sentence he appealed to the Oklahoma Court of Criminal Appeals and the case was affirmed. *There he raised the same question later raised by his petition for habeas corpus in the court below. The sole question presented by the petition is the admission, during his state court trial, of certain evidence allegedly obtained by an unlawful search and seizure. The federal trial court had before it, the petition, together with an official transcript of the state court trial proceedings which was attached to the petition as an exhibit. In addition, it properly considered the reported opinion of the Oklahoma Court of Criminal Appeals in the case. Thus the admonition of this court, as to the duty of a federal court under such circumstances, was adhered to.
The facts as recited in Trusty v. State of Oklahoma, supra, are in substance as follows: Because of numerous recent burglaries in the vicinity of the 4400 block of East 38th Place in Tulsa, Oklahoma, Officer Burris was assigned to patrol the area. After dark, on the night in question, while driving his patrol car in the area, he observed Trusty walking west on East 38th Place carrying an object which resembled a crowbar. Burris recognized Trusty as an ex-convict and knew that he did not live in that part of the city. At the same time, Burris observed two other men whom he recognized as “police characters”, walking in the same direction as Trusty but on the opposite side of the street. Burris also noticed a vehicle parked at the curb about one-half block away. He drove his car to a point beyond this car and parked to observe the three men. They walked to the car, got into it and drove toward Burris. Because of his knowledge about the three men, Burris decided to stop the car and question tfie occupants. He did stop them as the ear approached and asked them to get out of the car. Trusty got out from the driver’s seat but the other two remained in the car. He asked the two again to get out and he noticed, as they did, one of them stoop down on the side of the car away from where Burris was standing. A second patrol car then arrived and the three men were searched for weapons. Burris then proceeded around the ear to examine the place where the man stooped down. There he found a credit card in the name of Frank Newell, 3504 South Toledo Place, bank identification papers belonging to the same man and a gold watch. The officers then radioed their dispatcher this information, another patrol car was dispatched to the Newell address and it was discovered that the home had been burglarized. After receiving this information the officers placed the three men under arrest and searched the car, finding a crowbar, two pairs of gloves, a flashlight and a ring of keys. The three men were taken to the police station and the prosecution followed. After reading the transcript from the state court, we agree that the findings of the Oklahoma Court of Criminal Appeals are supported by that record.
The Oklahoma Court of Criminal Appeals on the basis of the foregoing facts and the law of Oklahoma, concluded that at the time of the arrest, the arresting officers had reasonable grounds to believe a felony had been committed, that Trusty had committed the felony and that the search of the ear, as incident to the arrest, was a lawful one., It is the law of Oklahoma that a peace officer may stop any person at night for the purpose of making reasonable inquiry when from his observation or otherwise gained knowledge, circumstances are created which reasonably suggest that a crime has been or is about to be committed.
Appellant urges that the court below should have granted him an evidentiary hearing and then granted the writ. The question raised by the petition for the writ is certainly one cognizable by a federal court, but that does not necessarily mean the petitioner is entitled to an evidentiary hearing. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, the Court, in considering the necessity for an evidentiary hearing upon a state prisoner’s petition for a writ of habeas corpus, said, “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.”
In this case, at the state court trial level, the accused prior to trial, filed his motion to suppress evidence and an evi-dentiary hearing was had before the trial judge and the motion to suppress was denied. After the conviction and sentence a direct appeal was taken to the highest court of the state with jurisdiction of the subject matter. That court, the Oklahoma Court of Criminal Appeals, with a transcript of the entire record from the trial court, including the evidence adduced at the hearing on the motion to suppress, wrote a formal opinion containing a recitation of the facts as revealed by the record and affirmed the trial court in all respects.
It is significant that in the state court hearing upon the motion to suppress that the movant used only the testimony of the arresting officer, therefore, there is no conflict in the trial record as to the facts and circumstances of the arrest and search. The Oklahoma Court of Criminal Appeals was not put in the position of weighing the evidence in its recitation of the facts, it obtained those facts from an uncontradicted source.
We must conclude that none of the circumstances enumerated in Townsend v. Sain, supra, requiring a federal court evidentiary hearing are present in this case. In addition we believe the court below acted judiciously in considering the petition, the state trial court transcript, and the reported opinion of the Oklahoma Court of Criminal Appeals, which is the highest state court with jurisdiction, and thereafter denied the writ. As was the trial court, we are convinced the state process gave appellant’s contentions and evidence fair consideration and resulted in a satisfactory result.
Affirmed.
. Trusty v. State of Oklahoma, 395 P.2d 350.
. See Sobota v. Cox, 10th Cir., 355 F.2d 368; Hurt v. Page, 10th Cir., 355 F.2d 169; Cordova v. Cox, 10th Cir., 351 F. 2d 269.
. 22 O.S.1961, § 196, § 198; State v. Chronister, Okl.Cr., 353 P.2d 493.
. State v. Chronister, supra.
. The Court in that case set out particular circumstances requiring a federal court evidentiary hearing as follows:
“If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.”
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_issue_3
|
B
|
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.
UNITED STATES et al. v. EDGE BROADCASTING CO., t/a POWER 94
No. 92-486.
Argued April 21, 1993
Decided June 25, 1993
White, J., delivered the opinion of the Court with respect to’Parts I, II, and IV, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined, the opinion of the Court with respect to Parts III-A and III-B, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined, the opinion of the Court with respect to Part III-C, in which Rehnquist, C. J., and Kennedy, Souter, and Thomas, JJ., joined, and an opinion with respect to Part III-D, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. Souter, J., filed an opinion concurring in part, in which Kennedy, J., joined, post, p. 436. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 436.
Paul J. Larkin, Jr., argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Assistant Attorney General Ger-son, and Deputy Solicitor General Roberts.
Conrad M. Shumadine argued the cause for respondent. With him on the brief was Walter D. Kelley, Jr
Briefs of amici curiae urging affirmance were filed for the Association of National Advertisers, Inc., et al. by Burt Neuborne and Gilbert H. Weil; and for the National Association of Broadcasters et al. by P. Cameron DeVore, Marshall J. Nelson, John Kamp, Steven R. Shapiro, John A Powell, Barbara W. Wall, Kenneth M. Vittor, Slade R. Metcalf, Richard E. Wiley, David P. Fleming, John F. Sturm, René P. Milam, Mark J. Prak, L. Stanley Paige, Bruce W. Sanford, and Henry S. Hoberman.
Justice White
delivered the opinion of the Court, except as to Part III-D.
In this case we must decide whether federal statutes that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State that does not allow lotteries, while allowing such broadcasting by a broadcaster licensed to a State that sponsors a lottery, are, as applied to respondent, consistent with the First Amendment.
I
While lotteries have existed in this country since its founding, States have long viewed them as a hazard to their citizens and to the public interest, and have long engaged in legislative efforts to control this form of gambling. Congress has, since the early 19th century, sought to assist the States in controlling lotteries. See, e. g., Act of Mar. 2,1827, §6, 4 Stat. 238; Act of July 27,1868, § 13,15 Stat. 196; Act of June 8, 1872, §149, 17 Stat. 302. In 1876, Congress made it a crime to deposit in the mails any letters or circulars concerning lotteries, whether illegal or chartered by state legislatures. See Act of July 12, 1876, ch. 186, § 2, 19 Stat. 90, codified at Rev. Stat. §3894 (2d ed. 1878). This Court rejected a challenge to the 1876 Act on First Amendment grounds in Ex parte Jackson, 96 U. S. 727 (1878). In response to the persistence of lotteries, particularly the Louisiana Lottery, Congress closed a loophole allowing the advertisement of lotteries in newspapers in the Anti-Lottery Act of 1890, ch. 908, § 1, 26 Stat. 465, codified at Supp. to Rev. Stat. §3894 (2d ed. 1891), and this Court upheld that Act against a First Amendment challenge in In re Rapier, 143 U. S. 110 (1892). When the Louisiana Lottery moved its operations to Honduras, Congress passed the Act of Mar. 2, 1895, 28 Stat. 963, 18 U. S. C. § 1301, which outlawed the transportation of lottery tickets in interstate or foreign commerce. This Court upheld the constitutionality of that Act against a claim that it exceeded Congress’ power under the Commerce Clause in Lottery Case, 188 U. S. 321 (1903). This federal antilottery legislation remains in effect. See 18 U. S. C. §§ 1301, 1302.
After the advent of broadcasting, Congress extended the federal lottery control scheme by prohibiting, in §316 of the Communications Act of 1934, 48 Stat. 1088, the broadcast of “any advertisement of or information concerning any lottery, gift enterprise, or similar scheme.” 18 U. S. C. § 1304, as amended by the Charity Games Advertising Clarification Act of 1988, Pub. L. 100-625, § 3(a)(4), 102 Stat. 3206. In 1975, Congress amended the statutory scheme to allow newspapers and broadcasters to advertise state-run lotteries if the newspaper is published in or the broadcast station is licensed to a State which conducts a state-run lottery. See 18 U. S. C. § 1307 (1988 ed., Supp. III). This exemption was enacted “to accommodate the operation of legally authorized State-run lotteries consistent with continued Federal protection to the policies of non-lottery States.” S. Rep. No. 93-1404, p. 2 (1974). See also H. R. Rep. No. 93-1517, p. 5 (1974).
North Carolina does not sponsor a lottery, and participating in or advertising nonexempt raffles and lotteries is a crime under its statutes. N. C. Gen. Stat. §§ 14-289 and 14-291 (1986 and Supp. 1992). Virginia, on the other hand, has chosen to legalize lotteries under a state monopoly and has entered the marketplace vigorously.
Respondent, Edge Broadcasting Company (Edge), owns and operates a radio station licensed by the Federal Communications Commission (FCC) to Elizabeth City, North Carolina. This station, known as “Power 94,” has the call letters WMYK-FM and broadcasts from Moyock, North Carolina, which is approximately three miles from the border between Virginia and North Carolina and considerably closer to Virginia than is Elizabeth City. Power 94 is one of 24 radio stations serving the Hampton Roads, Virginia, metropolitan area; 92.2% of its listening audience are Virginians; the rest, 7.8%, reside in the nine North Carolina counties served by Power 94. Because Edge is licensed to serve a North Carolina community, the federal statute prohibits it from broadcasting advertisements for the Virginia lottery. Edge derives 95% of its advertising revenue from Virginia sources, and claims that it has lost large sums of money from its inability to carry Virginia lottery advertisements.
Edge entered federal court in the Eastern District of Virginia, seeking a declaratory judgment that, as applied to it, §§ 1304 and 1307, together with corresponding FCC regulations, violated the First Amendment to the Constitution and the Equal Protection Clause of the Fourteenth, as well as injunctive protection against the enforcement of those statutes and regulations.
The District Court recognized that Congress has greater latitude to regulate broadcasting than other forms of communication. App. to Pet. for Cert. 14a-15a. The District Court construed the statutes not to cover the broadcast of noncommercial information about lotteries, a construction that the Government did not oppose. With regard to the restriction on advertising, the District Court evaluated the statutes under the established four-factor test for commercial speech set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980):
“At the outset, we must determine whether the expression is protected by the First Amendment. [1] For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask [2] whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine [3] whether the regulation directly advances the governmental interest asserted, and [4] whether it is not more extensive than is necessary to serve that interest.”
Assuming that the advertising Edge wished to air would deal with the Virginia lottery, a legal activity, and would not be misleading, the court went on to hold that the second and fourth Central Hudson factors were satisfied: the statutes were supported by a substantial governmental interest, and the restrictions were no more extensive than necessary to serve that interest, which was to discourage participating in lotteries in States that prohibited lotteries. The court held, however, that the statutes, as applied to Edge, did not directly advance the asserted governmental interest, failed the Central Hudson test in this respect, and hence could not be constitutionally applied to Edge. A divided Court of Appeals, in an unpublished per curiam opinion, affirmed in all respects, also rejecting the Government’s submission that the District Court had erred in judging the validity of the statutes on an “as applied” standard, that is, determining whether the statutes directly served the governmental interest in a substantial way solely on the effect of applying them to Edge. Judgt. order reported at 956 F. 2d 263 (CA4 1992).
Because the court below declared a federal statute unconstitutional and applied reasoning that was questionable under our cases relating to the regulation of commercial speech, we granted certiorari. 506 U. S. 1032 (1992). We reverse.
II
The Government argues first that gambling implicates no constitutionally protected right, but rather falls within a category of activities normally considered to be “vices,” and that the greater power to prohibit gambling necessarily includes the lesser power to ban its advertisement; it argues that we therefore need not proceed with a Central Hudson analysis. The Court of Appeals did not address this issue and neither do we, for the statutes are not unconstitutional under the standards of Central Hudson applied by the courts below.
III
For most of this Nation’s history, purely commercial advertising was not considered to implicate the constitutional protection of the First Amendment. See Valentine v. Chrestensen, 316 U. S. 52, 54 (1942). In 1976, the Court extended First Amendment protection to speech that does no more than propose a commercial transaction. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). Our decisions, however, have recognized the “‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978). The Constitution therefore affords a lesser protection to commercial speech than to other constitutionally guaranteed expression. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989); Central Hudson, supra, at 563; Ohralik, supra, at 456.
In Central Hudson, we set out the general scheme for assessing government restrictions on commercial speech. 447 U. S., at 566. Like the courts below, we assume that Edge, if allowed to, would air nonmisleading advertisements about the Virginia lottery, a legal activity. As to the second Central Hudson factor, we are quite sure that the Government has a substantial interest in supporting the policy of nonlottery States, as well as not interfering with the policy of States that permit lotteries. As in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), the activity underlying the relevant advertising — gambling— implicates no constitutionally protected right; rather, it falls into a category of “vice” activity that could be, and frequently has been, banned altogether. As will later be discussed, we also agree that the statutes are no broader than necessary to advance the Government’s interest and hence the fourth part of the Central Hudson test is satisfied.
The Court of Appeals, however, affirmed the District Court’s holding that the statutes were invalid because, as applied to Edge, they failed to advance directly the governmental interest supporting them. According to the Court of Appeals, whose judgment we are reviewing, this was because the 127,000 people who reside in Edge’s nine-county listening area in North Carolina receive most of their radio, newspaper, and television communications from Virginia-based media. These North Carolina residents who might listen to Edge “are inundated with Virginia’s lottery advertisements” and hence, the court stated, prohibiting Edge from advertising Virginia’s lottery “is ineffective in shielding North Carolina residents from lottery information.” This “ineffective or remote measure to support North Carolina’s desire to discourage gambling cannot justify infringement upon commercial free speech.” App. to Pet. for Cert. 6a, 7a. In our judgment, the courts below erred in that respect.
A
The third Central Hudson factor asks whether the “regulation directly advances the governmental interest asserted.” 447 U. S., at 566. It is readily apparent that this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity. Even if there were no advancement as applied in that manner — in this case, as applied to Edge — there would remain the matter of the regulation’s general application to others — in this case, to all other radio and television stations in North Carolina and countrywide. The courts below thus asked the wrong question in ruling on the third Central Hudson factor. This is not to say that the validity of the statutes’ application to Edge is an irrelevant inquiry, but that issue properly should be dealt with under the fourth factor of the Central Hudson test. As we have said, “[t]he last two steps of the Central Hudson analysis basically involve a consideration of the ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.” Posadas, supra, at 341.
We have no doubt that the statutes directly advanced the governmental interest at stake in this case. In response to the appearance of state-sponsored lotteries, Congress might have continued to ban all radio or television lottery advertisements, even by stations in States that have legalized lotteries. This it did not do. Neither did it permit stations such as Edge, located in a nonlottery State, to carry lottery ads if their signals reached into a State that sponsors lotteries; similarly, it did not forbid stations in a lottery State such as Virginia from carrying lottery ads if their signals reached into an adjoining State such as North Carolina where lotteries were illegal. Instead of favoring either the lottery or the nonlottery State, Congress opted to support the antigambling policy of a State like North Carolina by forbidding stations in such a State to air lottery advertising. At the same time it sought not to unduly interfere with the policy of a lottery-sponsoring State such as Virginia. Virginia could advertise its lottery through radio and television stations licensed to Virginia locations, even if their signals reached deep into North Carolina. Congress surely knew that stations in one State could often be heard in another but expressly prevented each and every North Carolina station, including Edge, from carrying lottery ads. Congress plainly made the commonsense judgment that each North Carolina station would have an audience in that State, even if its signal reached elsewhere and that enforcing the statutory restriction would insulate each station’s listeners from lottery ads and hence advance the governmental purpose of supporting North Carolina’s laws against gambling. This congressional policy of balancing the interests of lottery and nonlottery States is the substantial governmental interest that satisfies Central Hudson, the interest which the courts below did not fully appreciate. It is also the interest that is directly served by applying the statutory restriction to all stations in North Carolina; and this would plainly be the case even if, as applied to Edge, there were only marginal advancement of that interest.
B
Left unresolved, of course, is the validity of applying the statutory restriction to Edge, an issue that we now address under the fourth Central Hudson factor, i. e., whether the regulation is more extensive than is necessary to serve the governmental interest. We revisited that aspect of Central Hudson in Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 (1989), and concluded that the validity of restrictions on commercial speech should not be judged by standards more stringent than those applied to expressive conduct entitled to full First Amendment protection or to relevant time, place, or manner restrictions. Id., at 477-478. We made clear in Fox that our commercial speech cases require a fit between the restriction and the government interest that is not necessarily perfect, but reasonable. Id., at 480. This was also the approach in Posadas, 478 U. S., at 344.
We have no doubt that the fit in this case was a reasonable one. Although Edge was licensed to serve the Elizabeth City area, it chose to broadcast from a more northerly position, which allowed its signal to reach into the Hampton Roads, Virginia, metropolitan area. Allowing it to carry lottery ads reaching over 90% of its listeners, all in Virginia, would surely enhance its revenues. But just as surely, because Edge’s signals with lottery ads would be heard in the nine counties in North Carolina that its broadcasts reached, this would be in derogation of the substantial federal interest in supporting North Carolina’s laws making lotteries illegal. In this posture, to prevent Virginia’s lottery policy from dictating what stations in a neighboring State may air, it is reasonable to require Edge to comply with the restriction against carrying lottery advertising. In other words, applying the restriction to a broadcaster such as Edge directly advances the governmental interest in enforcing the restriction in nonlottery States, while not interfering with the policy of lottery States like Virginia. We think this would be the case even if it were true, which it is not, that applying the general statutory restriction to Edge, in isolation, would no more than marginally insulate the North Carolinians in the North Carolina counties served by Edge from hearing lottery ads.
In Ward v. Rock Against Racism, 491 U. S. 781 (1989), we dealt with a time, place, or manner restriction that required the city to control the sound level of musical concerts in a city park, concerts that were fully protected by the First Amendment. We held there that the requirement of narrow tailoring was met if “the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,” provided that it did not burden substantially more speech than necessary to further the government’s legitimate interests. Id., at 799 (internal quotation marks omitted). In the course of upholding the restriction, we went on to say that “the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interest in an individual case.” Id., at 801.
The Ward holding is applicable here, for we have observed that the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context and that it would be incompatible with the subordinate position of commercial speech in the scale of First Amendment values to apply a more rigid standard to commercial speech than is applied to fully protected speech. Fox, supra, at 477, 478. Ward thus teaches us that we judge the validity of the restriction in this case by the relation it bears to the general problem of accommodating the policies of both lottery and nonlottery States, not by the extent to which it furthers the Government’s interest in an individual case.
This is consistent with the approach we have taken in the commercial speech context. In Ohralik v. Ohio State Bar Assn., 436 U. S., at 462, for example, an attorney attacked the validity of a rule against solicitation “not facially, but as applied to his acts of solicitation.” We rejected the appellant’s view that his “as applied” challenge required the State to show that his particular conduct in fact trenched on the interests that the regulation sought to protect. We stated that in the general circumstances of the appellant’s acts, the State had “a strong interest in adopting and enforcing rules of conduct designed to protect the public.”' Id., at 464. This having been established, the State was entitled to protect its interest by applying a prophylactic rule to those circumstances generally; we declined to require the State to go further and to prove that the state interests supporting the rule actually were advanced by applying the rule in Ohralik’s particular case.
Edenfield v. Fane, 507 U. S. 761 (1993), is not to the contrary. While treating Fane’s claim as an as applied challenge to a broad category of commercial solicitation, we did not suggest that Fane could challenge the regulation on commercial speech as applied only to himself or his own acts of solicitation.
C
We also believe that the courts below were wrong in holding that as applied to Edge itself, the restriction at issue was ineffective and gave only remote support to the Government’s interest.
As we understand it, both the Court of Appeals and the District Court recognized that Edge’s potential North Carolina audience was the 127,000 residents of nine North Carolina counties, that enough of them regularly or from time to time listen to Edge to account for 11% of all radio listening in those counties, and that while listening to Edge they heard no lottery advertisements. It could hardly be denied, and neither court below purported to deny, that these facts, standing alone, would clearly show that applying the statutory restriction to Edge would directly serve the statutory purpose of supporting North Carolina’s antigambling policy by excluding invitations to gamble from 11% of the radio listening time in the nine-county area. Without more, this result could hardly be called either “ineffective,” “remote,” or “conditional,” see Central Hudson, 447 U. S., at 564, 569. Nor could it be called only “limited incremental support,” Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983), for the Government interest, or thought to furnish only speculative or marginal support. App. to Pet. for Cert. 24a, 25a. Otherwise, any North Carolina radio station with 127,000 or fewer potential listeners would be permitted to carry lottery ads because of its marginal significance in serving the State’s interest.
Of course, both courts below pointed out, and rested their judgment on the fact, that the 127,000 people in North Carolina who might listen to Edge also listened to Virginia radio stations and television stations that regularly carried lottery ads. Virginia newspapers carrying such material also were available to them. This exposure, the courts below thought, was sufficiently pervasive to prevent the restriction on Edge from furnishing any more than ineffective or remote support for the statutory purpose. We disagree with this conclusion because in light of the facts relied on, it represents too limited a view of what amounts to direct advancement of the governmental interest that is present in this case.
Even if all of the residents of Edge’s North Carolina service area listen to lottery ads from Virginia stations, it would still be true that 11% of radio listening time in that area would remain free of such material. If Edge is allowed to advertise the Virginia lottery, the percentage of listening time carrying such material would increase from 38% to 49%. We do not think that Central Hudson compels us to consider this consequence to be without significance.
The Court of Appeals indicated that Edge’s potential audience of 127,000 persons were “inundated” by the Virginia media carrying lottery advertisements. But the District Court found that only 38% of all radio listening in the nine-county area was directed at stations that broadcast lottery advertising. With respect to television, the District Court observed that American adults spend 60% of their media consumption time listening to, or watching, television. The evidence before it also indicated that in four of the nine counties served by Edge, 75% of all television viewing was directed at Virginia stations; in three others, the figure was between 50 and 75%; and in the remaining two counties, between 25 and 50%. Even if it is assumed that all of these stations carry lottery advertising, it is very likely that a great many people in the nine-county area are exposed to very little or no lottery advertising carried on television. Virginia newspapers are also circulated in Edge’s area, 10,400 daily and 12,500 on Sundays, hardly enough to constitute a pervasive exposure to lottery advertising, even on the unlikely assumption that the readers of those newspapers always look for and read the lottery ads. Thus the District Court observed only that “a significant number of residents of [the nine-county] area listens to” Virginia radio and television stations and read Virginia newspapers. App. to Pet. for Cert. 25a (emphasis added).
Moreover, to the extent that the courts below assumed that §§ 1304 and 1307 would have to effectively shield North Carolina residents from information about lotteries to advance their purpose, they were mistaken. As the Government asserts, the statutes were not “adopt[ed] ... to keep North Carolina residents ignorant of the Virginia Lottery for ignorance’s sake,” but to accommodate nonlottery States’ interest in discouraging public participation in lotteries, even as they accommodate the countervailing interests of lottery States. Reply Brief for Petitioners 11. Within the bounds of the general protection provided by the Constitution to commercial speech, we allow room for legislative judgments. Fox, 492 U. S., at 480. Here, as in Posadas de Puerto Rico, the Government obviously legislated on the premise that the advertising of gambling serves to increase the demand for the advertised product. See Posadas, 478 U. S., at 344. See also Central Hudson, supra, at 569. Congress clearly was entitled to determine that broadcast of promotional advertising of lotteries undermines North Carolina’s policy against gambling, even if the North Carolina audience is not wholly unaware of the lottery’s existence. Congress has, for example, altogether banned the broadcast advertising of cigarettes, even though it could hardly have believed that this regulation would keep the public wholly ignorant of the availability of cigarettes. See 15 U. S. C. § 1335. See also Queensgate Investment Co. v. Liquor Control Comm’n, 69 Ohio St. 2d 361, 366, 433 N. E. 138, 142 (alcohol advertising), app. dism’d for want of a substantial federal question, 459 U. S. 807 (1982). Nor do we require that the Government make progress on every front before it can make progress on any front. If there is an immediate connection between advertising and demand, and the federal regulation decreases advertising, it stands to reason that the policy of decreasing demand for gambling is correspondingly advanced. Accordingly, the Government may be said to advance its purpose by substantially reducing lottery advertising, even where it is not wholly eradicated.
Thus, even if it were proper to conduct a Central Hudson analysis of the statutes only as applied to Edge, we would not agree with the courts below that the restriction at issue here, which prevents Edge from broadcasting lottery advertising to its sizable radio audience in North Carolina, is rendered ineffective by the fact that Virginia radio and television programs can be heard in North Carolina. In our view, the restriction, even as applied only to Edge, directly advances the governmental interest within the meaning of Central Hudson.
D
Nor need we be blind to the practical effect of adopting respondent’s view of the level of particularity of analysis appropriate to decide its case. Assuming for the sake of argument that Edge had a valid claim that the statutes violated Central Hudson only as applied to it, the piecemeal approach it advocates would act to vitiate the Government’s ability generally to accommodate States with differing policies. Edge has chosen to transmit from a location near the border between two jurisdictions with different rules, and rests its case on the spillover from the jurisdiction across the border. Were we to adopt Edge’s approach, we would treat a station that is close to the line as if it were on the other side of it, effectively extending the legal regime of Virginia inside North Carolina. One result of holding for Edge on this basis might well be that additional North Carolina communities, farther from the Virginia border, would receive broadcast lottery advertising from Edge. Broadcasters licensed to these communities, as well as other broadcasters serving Elizabeth City, would then be able to complain that lottery advertising from Edge and other similar broadcasters renders the federal statute ineffective as applied to them. Because the approach Edge advocates has no logical stopping point once state boundaries are ignored, this process might be repeated until the policy of supporting North Carolina’s ban on lotteries would be seriously eroded. We are unwilling to start down that road.
IV
Because the statutes challenged here regulate commercial speech in a manner that does not violate the First Amendment, the judgment of the Court of Appeals is
Reversed.
Justice O’Connor joins Parts I, II, III-A, III-B, and IV of this opinion. Justice Scalia joins all but Part III-C of this opinion. Justice Kennedy joins Parts I, II, III-C, and IV of this opinion. Justice Souter joins all but Parts III-A, III-B, and III-D of this opinion.
Title 18 U. S. C. §1304 (1988 ed., Supp. Ill) provides:
“Broadcasting lottery information
“Whoever broadcasts by means of any radio or television station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
Title 18 U. S. C. §1307 (1988 ed. and Supp. Ill) provides in relevant part:
“Exceptions relating to certain advertisements and other information and to State-conducted lotteries
“(a) The provisions of sections 1301, 1302, 1303, and 1304 shall not apply to—
“(1) an advertisement, list of prizes, or other information concerning a lottery conducted by a State acting under the authority of State law which is—
“(A) contained in a publication published in that State or in a State which conducts such a lottery; or
“(B) broadcast by a radio or television station licensed to a location in that State or a State which conducts such a lottery; or
“(2) an advertisement, list of prizes, or other information concerning a lottery, gift enterprise, or similar scheme, other than one described in paragraph (1), that is authorized or not otherwise prohibited by the State in which it is conducted and which is—
“(A) conducted by a not-for-profit organization or a governmental organization; or
“(B) conducted as a promotional activity by a commercial organization and is clearly occasional and ancillary to the primary business of that organization.”
We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.
It would appear, then, that 51% of the radio listening time in the relevant nine counties is attributable to other North Carolina stations or other stations not carrying lottery advertising.
Question: What is the issue of the decision?
A. First Amendment, miscellaneous (cf. comity: First Amendment)
B. commercial speech, excluding attorneys
C. libel, defamation: defamation of public officials and public and private persons
D. libel, privacy: true and false light invasions of privacy
E. legislative investigations: concerning internal security only
F. federal or state internal security legislation: Smith, Internal Security, and related federal statutes
G. loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher)
H. loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court)
I. loyalty oath: government employees
J. loyalty oath: political party
K. loyalty oath: teachers
L. security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements
M. conscientious objectors (cf. military draftee or military active duty) to military service
N. campaign spending (cf. governmental corruption):
O. protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees
P. free exercise of religion
Q. establishment of religion (other than as pertains to parochiaid:)
R. parochiaid: government aid to religious schools, or religious requirements in public schools
S. obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment
T. obscenity, federal
Answer:
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songer_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
CITY OF GARLAND, Plaintiff-Appellee, v. ZURN INDUSTRIES, INC., et al., Defendants, and URS Company, Successor in Interest to Forrest & Cotton, Inc., Defendant-Third Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Defendant-Appellee.
No. 88-1697.
United States Court of Appeals, Fifth Circuit.
April 21, 1989.
Teresa Jenkins Carson, William R. Al-lensworth, David Taubenfeld, Haynes & Boone, Dallas, Tex., for appellant.
Bert R. Oastler, Neal J. Sweeney, Atlanta, Ga., for City of Garland, Tex.
Jay Tidmarsh, Trial Atty., Torts Branch, Civil Div., U.S. Dept, of Justice, Washington, D.C., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.A.
Before POLITZ and JOLLY, Circuit Judges, and HUNTER, District Judge.
District Judge of the Western District of Louisiana, sitting by designation.
E. GRADY JOLLY, Circuit Judge:
In this case we are asked to consider whether the Environmental Protection Agency (“EPA”) is protected by the “discretionary function” or “misrepresentation” exceptions to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”), for any negligence in its analysis, testing, or eventual approval of a physical-chemical waste water treatment process submitted by the City of Garland. Finding that the “misrepresentation” exception, 28 U.S.C. § 2680(h), bars this third-party action against the EPA for contribution, we affirm.
I
This case arose out of the construction of the City of Garland’s Duck Creek sewage treatment plant. The City of Garland, Texas (“Garland”) turned to URS Company (“URS”) in 1969 and 1970 to study ways in which the city’s sewage plant could be expanded and improved to meet anticipated Texas and EPA effluent discharge permit requirements. Garland wanted an innovative proposal so that it could receive a construction grant from the EPA. In addition, the city sought to be designated a regional waste water treatment facility so that it would be more likely to be awarded significant federal funding. In early 1970 Garland contracted with URS to provide a recommendation and design that would meet the EPA’s permit requirement. URS designed a physical-chemical (“p-chem”) treatment plant which incorporated a technologically innovative carbon adsorption system. Garland applied for and received a substantial grant from the EPA, which financed seventy-five percent of the cost of construction of the Duck Creek project. As part of the application process, before Garland was awarded a grant, the EPA reviewed and approved URS’s design.
As design engineer for the project, URS analyzed Garland’s sewage, reviewed ten years of data Garland had compiled, and conducted its own treatability tests. Although URS wished to build a scaled-down version of its proposed plant so that the p-chem process could be tested, the EPA rejected Garland’s funding request for such a pilot plant. The EPA stated that it had already conducted a wealth of experimentation and studies on p-chem waste treatment, so a test plant was not necessary. Garland declined to fund the pilot plant itself.
Construction of the Duck Creek project was begun in 1974 and the facility began operating in 1977. Soon after the new plant started operations, the system ruptured and could not be repaired to operate as originally intended. The plant did not meet the permit requirements, and as a result the EPA filed suit against Garland in federal district court for violations of the Clean Water Act, 33 U.S.C. § 1311, seeking civil penalties and an abatement of the condition. The City was forced to pay to defend against the environmental enforcement actions brought against it and to redesign the plant in order to bring it into compliance. The EPA withheld certain grant funds until the Duck Creek plant met its permit requirements, which also caused Garland to lose interest and bonding capacity. The EPA’s action against Garland was settled by consent decree, establishing interim effluent levels and assessing Garland a substantial penalty. Garland’s reconfigured plant only became fully operational in late April 1986.
In 1982 Garland filed suit against URS and other engineering consultants and contractors for the p-chem waste water treatment plant, in an effort to recoup the costs it had incurred under the consent decree. Garland requested over $26 million in damages from URS, alleging that URS’s novel physical-chemical process design could never have produced the required effluent quality, and URS had failed to recommend and perform essential pilot scale testing and sufficient waste water testing before recommending the process. See Zurn Industries, Inc. v. Acton Const. Co., 847 F.2d 234 (5th Cir.1988) (related case, reporting additional facts).
In August 1987 URS filed a third-party action against the EPA for contribution as joint tortfeasor. URS’s theory was that if Garland were awarded damages against URS, URS should be compensated by the EPA because the EPA’s acts or omissions in its review and approval process were negligent and a proximate cause of any injury Garland suffered from any deficiency in the design of the Duck Creek plant. URS’s claim evolved into a claim that the EPA had breached its duty to exercise care in the study of p-chem processes before counselling URS on the process and before approving URS’s design. URS alleged that it had relied heavily on the EPA’s input in making its final recommendation to Garland. URS relied on the EPA’s process design manual, met with EPA scientists and engineers for discussion, and combined the results of its own treatability studies with the EPA’s scientific data before recommending to Garland that it go ahead with the p-chem process. Further, URS alleged that the EPA itself participated in the analysis and design of the Duck Creek treatment plant, and reviewed and approved the plant’s final design and specifications. These were operational functions mandated by EPA regulations, and, it therefore was alleged, the EPA must be liable under the FTCA to Garland for any negligence in their execution.
The. United States removed the case to federal court and moved to dismiss URS’s claims, asserting that (1) the acts of the EPA were protected by the “discretionary function” exception to the FTCA; (2) URS was required to file an administrative claim before it brought its third-party action against the EPA; and (3) the doctrine of “derivative jurisdiction” precluded the federal court from obtaining jurisdiction over the removed action.
On March 25, 1988 the court found that the EPA had performed discretionary functions in examining the plans for the plant, in discussing the plans with URS, and in deciding to provide a grant to the city to construct the plant. The court granted EPA’s motion to dismiss on this basis, although it noted that any of the three grounds would have sufficed to warrant dismissal.
II
On appeal URS urges that the district court’s dismissal of URS’s claims was based on a misunderstanding of those claims. URS explains that its third-party claim against the EPA is based not on EPA’s discretionary decision to fund the Duck Creek plant, but on the EPA’s nondis-cretionary acts in implementing its decision to institute a research and development program in order to encourage and develop innovative waste treatment processes. The EPA contributed to Garland’s damages by failing to use due care both in conducting its research into the p-chem process, and in reviewing and analyzing the Duck Creek treatment plant design. These involved scientific research and experimentation, and so, URS contends, are not protected by the FTCA as “social, economic or political policy” decisions. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). Further, because the EPA would not provide funds to Garland for a pilot plant for independent testing of the p-chem system, Garland and URS were forced to rely on studies, test results, and information generated by the EPA’s research center and disseminated by the EPA’s independent research program. The EPA wrongly approved the process, and both Garland and URS relied to their detriment on that recommendation. For these reasons, it is argued, the EPA must be considered a joint tortfeasor and owe contribution to URS.
The EPA responds in turn that the FTCA’s discretionary function exception does bar URS’s claims because the EPA is required to weigh environmental and economic policy objectives in reviewing and approving a grantee’s design, and Congress gave the EPA complete discretion as to the manner in which it would conduct its research and disseminate the information it gleaned from that research. Moreover, to the extent URS alleges that it relied on the EPA’s research data, URS’s claim is barred by the FTCA’s misrepresentation exception, which has been construed to preclude claims based upon negligence in obtaining and communicating information upon which a party may reasonably be expected to rely in the conduct of his economic affairs. United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961).
Ill
We turn first to the EPA’s argument that 28 U.S.C. § 2680(h), the misrepresentation exception to the government’s waiver of sovereign immunity under the FTCA, bars URS’s claim for contribution. It is clear from the case law that section 2680(h), stating that the FTCA will not apply to “[a]ny claim arising out of ... misrepresentation,” protects the EPA against liability for contribution to URS for any damages Garland incurred as a result of its reliance on data the EPA generated or collected on the p-chem process and shared with URS.
In United States v. Neustadt, homebuyers negotiated a purchase price of $24,000 in reliance on an FHA appraisal that negligently misrepresented the value of the home. They sued the government under the FTCA for the difference between the lower fair market value of the property and the price they negotiated on the basis of the FHA appraisal. The district court found the government liable for $8,000. The Fourth Circuit affirmed, but the Supreme Court reversed, finding that section 2680(h) excluded from recovery under the FTCA claims arising out of negligent misrepresentation. The Court considered the legislative history of section 226 of the National Housing Act, 12 U.S.C. § 1701 et seq., requiring that a seller of property approved for FHA mortgage insurance “shall agree to deliver, prior to the sale of the property, to the person purchasing such [property], a written statement setting forth the amount of the [FHA] appraised value ...,” and found nothing from which it could infer that Congress intended to limit or suspend the application of the “misrepresentation” exception of the Tort Claims Act in the Neustadts’ situation:
Long before § 226 was added to the National Housing Act, ... it had been recognized in Congress that FHA appraisals would be a matter of public record, and would thus inure, incidentally, to the benefit of prospective home purchasers, by affording them the “benefit of knowing the appraised value set upon the property * * * by a trained valuator ...”
But at the same time, it was repeatedly emphasized that the primary and predominant objective of the appraisal system was the “protection of the Government and its insurance funds”; ... that “there is no legal relationship between the FHA and the individual mortagor.” Never once was it even intimated that, by an FHA appraisal, the Government would, in any sense, represent or guarantee to the purchaser that he was receiving a certain value for his money.
366 U.S. at 708-09, 81 S.Ct. at 1301 (footnotes omitted). Accordingly, the Supreme Court in Neustadt found no “specific duty” on the part of the FHA to make and communicate an accurate appraisal by virtue of the provisions of the National Housing Act, and therefore no actionable right of redress against the Government in the event a faulty appraisal was given. 366 U.S. at 708-09, 81 S.Ct. at 1301-02.
In Baroni v. United States, 662 F.2d 287 (5th Cir.1981), purchasers of subdivision housing units sued the government under the FTCA to recover for flood damage. The FHA had miscalculated the predicted fifty-year flood height and approved the subdivision so that loans made on residences constructed within the subdivision would be eligible for government-insured financing. After houses were constructed, the subdivision flooded twice and the plaintiffs’ homes were damaged. This circuit found that no federal duty to provide housing safe from flooding was imposed on the government by the National Housing Act.
While the information supplied by the government may ‘inure, incidentally, to the benefit of prospective home purchasers,’ the primary purpose of the government’s undertaking is to make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection.... Congress did not intend ‘to extend to the purchaser any actionable right of redress against the Government in the event of a faulty appraisal....’
662 F.2d at 289 (citations omitted). The panel held that even if the government’s undertaking had created a duty under state law to determine the flood level nonnegli-gently, the damages complained of resulted from the communication of the government’s miscalculation, and the misrepresentation exception barred the purchasers’ claims. Id.
The instant case is not materially distinguishable from Baroni or Neustadt. It has not been shown that the EPA owed Garland any duty whatsoever on which URS can premise its claim for contribution, either to counsel on the p-chem process or to compile accurate information.
The EPA’s authority to conduct research and to make grants derives from the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, 33 U.S.C. § 1251 et seq. The Act’s objective was to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and to that end, under the Act Congress delegated broad authority to the EPA to establish national programs, conduct research, and develop effective processes for the prevention, reduction and elimination of pollution. 33 U.S.C. § 1254(a), (a)(1), (b)(7), (d). The EPA was authorized to collect the results of its research and other activities and make them available to the public, along with appropriate recommendations. 33 U.S.C. § 1254(b)(1), (b)(6). The Act also provided for financial-assistance grants for the construction of publicly owned treatment works meeting various criteria. 33 U.S.C. § 1281(g)(1). See generally 40 C.F. R. § 30.100 et seq (1973) (general grant regulations) and 40 C.F.R. § 35.900 et seq (1973) (specific grant regulations for construction of treatment works).
URS urges that the mandatory language of 40 C.F.R. §§ 35.925 and 35.925-7(b) (1973) demonstrates that the EPA owed Garland a statutory duty to review Garland’s proposal and warrant that it would meet the applicable permit requirements. These regulations state that
Before awarding initial grant assistance for any project for treatment works the Regional Administrator shall determine:
... [t]hat such works will meet applicable effluent limitations and applicable water quality standards and attain not less than secondary treatment....
Although this regulation places on the EPA a duty to review and evaluate proposed treatment works designs before awarding a grant of government funds, it serves as no guarantee to any grantee that the grantee’s plans will satisfy the applicable effluent limitations. 40 C.F.R. § 30.600 (1973), in effect at the time the City of Garland’s construction grant was approved, specifically dictated that “[t]he primary responsibility for administration of a grant must remain with the grantee, who is responsible for the success of the project for which the grant was made.” That section continued:
Although grantees are encouraged to seek the advice and opinions of EPA on problems that may arise, the giving of such advice shall not shift the responsibility for final decision to EPA. The primary concern of EPA is that granted funds be used to achieve the objectives of the grant project in a manner that will accord with program objectives and will make a maximum contribution to the betterment of the environment. Grantees and those assisting them on project work must direct their efforts to this end.
It is plain that the intent of the EPA’s regulations regarding the review and approval of construction grants under the Act is to ensure that federal funds are most effectively spent to achieve the central purpose of the Act — to eliminate the discharge of pollutants into the nation’s waters. See generally 40 C.F.R. §§ 35.915, 35.920 et seq. (1973); 40 C.F.R. § 35.915 (1988). For the same reasons that the Supreme Court in Neustadt and this circuit in Baroni held that the National Housing Act created no actionable duty running from the FHA to homebuyers, in this case we hold that the Clean Water Act imposed no duty on the EPA which would limit or suspend the application of the “misrepresentation exception” to the FTCA.
The respective requirements found in Neustadt and Baroni that the FHA perform appraisals on property prior to its sale and calculate the predicted fifty-year flood height prior to approving a subdivision for government-insured financing were imposed predominantly for the “protection of the government and its insurance funds,” Neustadt, 366 U.S. at 709, 81 S.Ct. at 1301, and to “make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection,” Baroni, 662 F.2d at 289. In the instant case, the Clean Water Act’s regulations requiring review and approval of construction grants and treatment plant designs are also primarily for the purpose of ensuring that the government’s investment in these projects is put to best use to improve the quality of the environment. Although the City of Garland may have been an incidental beneficiary of a determination by the EPA that the Duck Creek Plant would achieve its permit requirements, it is apparent that the environment itself was the intended beneficiary of the EPA’s research efforts and its construction grant administration. See 33 U.S.C. §§ 1251, 1254. Cf. Neustadt, 366 U.S. at 708, 81 S.Ct. at 1301 (FHA appraisals inure only incidentally to the benefit of prospective homeowners); Baroni, 662 F.2d at 289 (flood height calculations inure only incidentally to the benefit of prospective home-buyers). We therefore find that the applicable regulations of the Clean Water Act imposed no duty on the EPA to warrant to Garland that its plant would meet its permit requirements, which would suspend application of the misrepresentation exception. Cf. In re Air Crash Disaster Near Silver Plume, 445 F.Supp. 384, 405-09 (1977) (Federal Aviation Act of 1958 and its regulations create an actionable duty on the part of the FAA personnel to air passengers, pilots and personnel to carry out operational activities under the Act in a nonnegligent manner).
In addition, to the extent that URS bases its claim for contribution on inaccurate data or test results the EPA furnished to Garland or to it as Garland’s agent, this claim is clearly barred by the misrepresentation exception to the FTCA. The FTCA does not allow for the recovery of damages resulting from the government’s negligence in obtaining and communicating information. Neustadt, 366 U.S. at 706, 81 S.Ct. at 1300; Baroni, 662 F.2d at 289.
Because federal courts lack subject-matter jurisdiction to entertain claims against the United States falling within one of the statutory exceptions to the FTCA, URS’s third-party claims against the EPA, alleging damages resulting from its reliance on information the EPA generated negligently and communicated, were properly dismissed by the district court under the FTCA’s misrepresentation exception, 28 U.S.C. §§ 1346, 2680(h).
IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
. All references are to the Clean Water Act in effect in 1973 and 1974, when the actions in this case occurred, unless otherwise noted.
. Although we need not decide this issue in view of our holding above that the misrepresentation exception bars URS’s claims, we note that the "discretionary function" exception, relied on by the district court, also does not seem misapplied here. It is not disputed that the EPA's decision to approve the Duck Creek p-chem process, as the district court held, was the exercise of a discretionary function. Further, the EPA was under no contractual or other duty to provide URS with information URS could use to profit through its contract with Garland; the EPA was simply performing a public service in counsel-ling both Garland and URS prior to its approval of Garland’s Duck Creek proposal.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_applfrom
|
C
|
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).
W. J. PERRYMAN & COMPANY, Inc., Appellant, v. PENN MUTUAL FIRE INSURANCE COMPANY, Appellee.
No. 20308.
United States Court of Appeals Fifth Circuit.
Nov. 13, 1963.
Marion R. Shepard, Jacksonville, Fla., Marshall H. Fitzpatrick, Birmingham, Ala. (Mead, Norman & Fitzpatrick, Birmingham, Ala., Mathews, Osborne & Ehrlich, Jacksonville, Fla., of counsel), for appellant.
William M. Howell, Charles Cook Howell, Jacksonville, Fla. (Howell, Kirby, Montgomery & Sands, Jacksonville, Fla., of counsel), for appellee.
Before RIYES and JONES, Circuit Judges, and DAWKINS, Jr., District Judge.
JONES, Circuit Judge.
The appellant, W. J. Perryman & Company, Inc., is an Alabama corporation. On July 1,1947, it entered into a contract with the appellee, Penn Mutual Fire Insurance Company, a Pennsylvania corporation, appointing the appellant as general agent of the appellee in the State of Alabama. By an amendment to the contract the appellant also became the appellee’s general agent in the State of Florida. The contract terminated on October 12, 1957. On November 22, 1957, the appellant brought suit in the United States District Court for the Northern District of Alabama, there identified as Civil Action No. 8895, against the appellee. In its complaint in that action the appellant asserted that the appellee had breached the contract and that, in violation of the contract, the appellee had sought to appropriate to itself the good will and business of the appellant by the solicitation of insurance renewals. It was alleged that:
“By these unlawful acts in violation of the defendant’s [appellee] contractual obligation to the plaintiff [appellant] as above set forth, and by the continuation of such acts in the future, the defendant has injured and damaged the plaintiff in a large sum of money, to-wit, $100,-000.00. * * *”
The appellant, by the prayer of its complaint in the Alabama suit, sought to enjoin the solicitation of renewals or the making of renewals.
The claims asserted in the Alabama litigation were compromised, settled and released. The compromise was effected by a formal instrument of release. It recited that the averments of the then pending action were incorporated in and made a part of the release by reference. Payment by the appellee to the appellant of $55,000.00 was acknowledged “by way of compromise of the claims and demands made against it in said Civil Action No. 8895.” The operative part of the release is in the following terms:
“Now, Therefore, In Consideration of the Premises and of the payment to Undersigned of the sum of Fifty Five Thousand ($55,000.00) Dollars, the receipt of which is hereby acknowledged, the Undersigned does hereby remise, release and forever discharge Penn Mutual Fire Insurance Company, a corporation, its officers, servants, agents, employees, successors and assigns of and from all and all manner of actions, causes of action, suits, proceedings, debts, dues, contracts, damages, claims and demands whatsoever in law, equity or civil action, which against the said Penn Mutual Fire Insurance Company, a corporation, its officers, servants, agents, employees, successors or assigns the Undersigned ever had, now has, or which it and its successors and assigns hereafter can, shall or may have for or by reason of the asserted breach by Penn Mutual Fire Insurance Company of the said contract of, to-wit: July 1, 1947, and said contract as amended, and by reason of any matter, cause or thing whatsoever averred in said Civil Action No. 8895, or which could have been litigated in said Civil Action No. 8895. It is understood and agreed between Undersigned and Penn Mutual Fire Insurance Company that Undersigned will cause said Civil Action No. 8895 to be dismissed with prejudice at the cost of Penn Mutual Fire Insurance Company.”
It was recited that the payment was in satisfaction of the appellant’s claim for compensatory damages only and not for punitive damages. It was agreed that the payment was not to be construed as an admission of liability by the appellee. The Alabama suit was dismissed with prejudice.
The action which gave rise to this appeal was brought by the appellant against the appellee in a Florida State court in 1961. It was removed, by reason of diversity of citizenship, to the United States District Court for the Southern, now Middle, District of Florida. The complaint set forth the agency contract and its termination, the Alabama action, the settlement and the release. It alleged continued acts by the appellee to obtain renewals of insurance policies originally procured by the appellant during the period of the agency, which conduct, the appellant averred, was the taking of its property. The district court granted the motion of the appellee for a summary judgment and this appeal is from the summary judgment so entered.
Although the claim is made that recovery is sought for a wrongful taking of property, the right asserted is dependent upon the contract of the parties. A custom is alleged that a general agency contract in the insurance business gives rise to a property right in the good will of the renewals of the policies issued by or through the general agent; but whatever rights of such nature may have arisen, they arose from and are dependent upon the contract which the parties made.
There was a controversy between the parties which was before a court in the 1957 litigation in Alabama. That controversy was compromised and settled, and we look to the claim there asserted to ascertain the nature and extent of the controversy. We see that the appellant sought, not only damages for the past conduct of the appellee but for “the continuation of such acts in the future.” We look to the release to ascertain the nature and extent of the settlement. Miles v. Barrett, 223 Ala. 293, 134 So. 661. In addition to the general terms of release, the appellant released all claims which it had or which it thereafter could have by reason of the asserted breach, and by reason of any matter, cause or thing averred in Civil Action 8895.
The law favors and encourages compromises. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2; J. Kahn & Co. v. Clark, 5th Cir. 1949, 178 F.2d 111. Future damages may be released if such is the intent of the parties. Nahtel Corporation v. West Virginia Pulp & Paper Co., 2nd Cir. 1944, 141 F.2d 1. It was the intent to release the claim and demand which the appellant had asserted in its Alabama suit, including the damages for future acts of the appellee. It seems elementary that the release of the claims asserted in a suit would be a complete bar to the subsequent assertion of such claims. We think that if the suit had proceeded to judgment for the appellant, that judgment would have been a bar to the claim asserted in this cause. The compromise, settlement and release are as conclusive as a judgment would have been if the claim had been litigated rather than compromised and settled. J. Kahn & Co. v. Clark, supra. The dismissal with prejudice adds res judicata to the release as barring recovery by the appellant. The summary judgment was proper.
Deciding the appeal as we do, we find it unnecessary to consider the instrument which was prepared as an amendment to the agency contract.
The judgment of the district court is
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_lcdisagreement
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
O’SHEA, MAGISTRATE, CIRCUIT COURT OF ALEXANDER COUNTY, ILLINOIS, et al. v. LITTLETON et al.
No. 72-953.
Argued October 17, 1973
Decided January 15, 1974
White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and RehNQüist, JJ., joined. Black-MUN, J., filed an opinion concurring in the judgment and in Part I of the Court’s opinion, post, p. 504. Douglas, J., filed a dissenting opinion, in which BrenhaN and Marshall, JJ., joined, post, p. 505.
Robert J. O’Rourke, Deputy Assistant Attorney General of Illinois, argued the cause for petitioners. With him on the briefs were William J. Scott, Attorney General, Fred F. Herzog, First Assistant Attorney General, John W. Freels, Special Assistant Attorney General, and Jerráld B. Abrams, Assistant Attorney General.
Alan M. Wiseman argued the cause for respondents. With him on the brief were James B. O’Shaughnessy and Michael P. Seng
'Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci, Deputy Attorney General, for the State of California; and by Jack E. Horsley and Richard F. Record, Jr., for the Illinois State Bar Assn.
Mr. Justice White
delivered the opinion of the Court.
The respondents are 19 named individuals who commenced this civil rights action, individually and on behalf of a class of citizens of the city of Cairo, Illinois, against the State’s Attorney for Alexander County, Illinois, his investigator, the Police Commissioner of Cairo, and the petitioners here, Michael O’Shea and Dorothy Spomer, Magistrate and Associate Judge of the Alexander County Circuit Court, respectively, alleging that they have intentionally engaged in, and are continuing to engage in, various patterns and practices of conduct in the administration of the criminal justice system in Alexander County that deprive respondents of rights secured by the First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments, and by 42 U. S. C. §§ 1981, 1982, 1983, and 1985. The complaint, as amended, alleges that since the early 1960’s, black citizens of Cairo, together with a small number of white persons on their behalf, have been actively, peaceably and lawfully seeking equality of opportunity and treatment in employment, housing, education, participation in governmental decisionmaking and in ordinary day-to-day relations with white citizens and officials of Cairo, and have, as an important part of their protest, participated in, and encouraged others to participate in, an economic boycott of city merchants who respondents consider have engaged in racial discrimination. Allegedly, there 'had resulted a great deal of tension and antagonism among the white citizens and officials of Cairo.
The individual respondents are 17 black and two white residents of Cairo. The class, or classes, which they purport to represent are alleged to include “all those who, on account of their race or creed and because of their exercise of First Amendment rights, have [been] in the past and continue to be subjected to the unconstitutional and selectively discriminatory enforcement and administration of criminal justice in Alexander County,” as well as financially poor persons “who, on account of their poverty, are unable to afford bail, or are unable to afford counsel and jury trials in city ordinance violation cases.” The complaint charges the State’s Attorney, his investigator, and the Police Commissioner with a pattern and practice of intentional racial discrimination in the performance of their duties, by which the state criminal laws and procedures are deliberately applied more harshly to black residents of Cairo and inadequately applied to white persons who victimize blacks, to deter respondents from engaging in their lawful attempt to achieve equality. Specific supporting examples of such conduct involving some of the individual respondents are detailed in the complaint as to the State’s Attorney and his investigator.
With respect to the petitioners, the county magistrate and judge, a continuing pattern and practice of conduct, under color of law, is alleged to have denied and to continue to deny the constitutional rights of respondents and members of their class in three respects:
(1) petitioners set bond in criminal cases according to an unofficial bond schedule without regard to the facts of a case or circumstances of an individual defendant in violation of the Eighth and Fourteenth Amendments;
(2) “on information and belief” they set sentences higher and impose harsher conditions for respondents and members of their class than for white persons, and (3) they require respondents and members of their class when charged with violations of city ordinances which carry fines and possible jail penalties if the fine cannot be paid, to pay for a trial by jury' in violation of the Sixth, Eighth, and Fourteenth Amendments. Each of these continuing practices is alleged to have been carried out intentionally to deprive respondents and their class of the protections of the county criminal justice system and to deter them from engaging in their boycott and similar activities. The complaint further alleges that there is no adequate remedy at law and requests that the practices be enjoined. No damages were sought against the petitioners in this case, nor were any specific instances involving the individually named respondents set forth in the claim against these judicial officers.
The District Court dismissed the case for want of jurisdiction to issue the injunctive relief prayed for and on the ground that petitioners were immune from suit with respect to acts done in the course of their judicial duties. The Court of Appeals reversed, holding that Pierson v. Ray, 386 U. S. 547, 554 (1967), on which the District Court relied, did not forbid the issuance of injunctions against judicial officers if it is alleged and proved that they have knowingly engaged in conduct intended to discriminate against a cognizable class of persons on the basis of race; Absent sufficient remedy at law, the Court of Appeals ruled that in the event respondents proved their allegations, the District Court should proceed to fashion appropriate injunctive relief to prevent petitioners from depriving others of their constitutional rights in the course of carrying out their judicial duties in the future. We granted certiorari. 411 U. S. 915 (1973).
I
We reverse the judgment of the Court of Appeals. The complaint failed to satisfy the threshold requirement imposed by Art. Ill of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy. Flast v. Cohen, 392 U. S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U. S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs in the federal courts “must allege soxpe threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973). There must be a “personal stake in the outcome” such as to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP, 412 U. S. 669, 687 (1973). Abstract injury is not enough. It must be alleged that the plaintiff “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). The injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.” Golden v. Zwickler, 394 U. S. 103, 109-110 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); United Public Workers v. Mitchell, 330 U. S. 75, 89-91 (1947). Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Bailey v. Patterson, 369 U. S. 31, 32-33 (1962); Indiana Employment Division v. Burney, 409 U. S. 540 (1973). See 3B J. Moore, Federal Practice, ¶ 23.10-1, n. 8 (2d ed. 1971).
In the complaint that began this action, the sole allegations of injury are that petitioners “have engaged in and continue to engage in, a pattern and practice of conduct ... all of which has deprived and continues to deprive plaintiffs and members of their class of their” constitutional rights and, again, that petitioners “have denied and continue to deny to plaintiffs and members of their class their constitutional rights” by illegal bond-setting, sentencing, and jury-fee practices. None of the named plaintiffs is identified as himself having suffered any injury in the manner specified. In sharp contrast to the claim for relief against the State’s Attorney where specific instances of misconduct with respect to particular individuals are alleged, the claim against petitioners alleges injury in only the most general terms. At oral argument, respondents’ counsel stated that some of the named plaintiffs-respondents, who could be identified by name if necessary, had actually been defendants in proceedings before petitioners and had suffered from the alleged unconstitutional practices. Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners. Indeed, if any of the respondents were then serving an assertedly unlawful sentence, the complaint would inappropriately be seeking relief from or modification of current, existing custody. See Preiser v. Rodriguez, 411 U. S. 475 (1973). Furthermore, if any were then on trial or awaiting trial in state proceedings, the complaint would be seeking injunctive relief that a federal court should not provide. Younger v. Harris, 401 U. S. 37 (1971); see also Part II, infra. We thus do not strain to read inappropriate meaning into the con-clusory allegations of this complaint.
Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. Important to this assessment is the absence of allegations that any relevant criminal statute of the State of Illinois is unconstitutional on its face or as applied or that respondents have been or will be improperly charged with violating criminal law. If the statutes that might possibly be enforced against respondents are valid laws, and if charges under these statutes are not improvidently made or pressed, the question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses, in which event they may appear before petitioners and, if they do, will be affected by the allegedly illegal conduct charged. Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. See Younger v. Harris, supra, at 41-42. The nature of respondents’ activities is not described in detail and no specific threats are alleged to have been made against them. Accepting that they are deeply involved in a program to eliminate racial discrimination in Cairo and that tensions are high, we are nonetheless unable to. conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.
As in Golden v. Zwickler, we doubt that there is “ ‘sufficient immediacy and reality’ ” to respondents’ allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, “it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.” 394 U. S., at 109. Here we can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordinance or a state statute, particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct. Cf. Perez v. Ledesma, 401 U. S. 82, 101-102 (1971) (opinion of Brennan, J.). Even though Zwickler attacked a specific statute under which he had previously-been prosecuted, the threat of a new prosecution was not sufficiently imminent to satisfy the jurisdictional requirements of the federal courts. Similarly, respondents here have not pointed to any imminent prosecutions contemplated against any of their number and they naturally do not suggest that any one of them expects to violate valid criminal laws. Yet their vulnerability to the alleged threatened injury from which relief is sought is necessarily contingent upon the bringing of prosecutions against one or more of them. Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.
In Boyle v. Landry, 401 U. S. 77, 81 (1971), the Court ordered a complaint dismissed for insufficiency of its allegations where there was no basis for inferring “that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.” The Court expressed the view that “the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.” Ibid. A similar element of uncertainty about whether the alleged injury will be likely to .occur is present in this case, and a similar reluctance to interfere with the normal operation of state administration of its criminal laws in the manner sought by respondents strengthens the conclusion that the allegations in this complaint are too insubstantial to warrant federal adjudication of the merits of respondents’ claim.
The foregoing considerations obviously shade into those determining whether the complaint states a sound basis for equitable relief; and even if we were inclined to consider the complaint as presenting an existing case or controversy, we would firmly disagree with the Court of Appeals that an adequate basis for equitable relief against petitioners had been stated. The Court has recently reaffirmed the “basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U. S. 37, 43-44 (1971). Additionally, recognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State’s criminal laws in the absence of a showing of irreparable injury which is “ Toth great and immediate.’ ” Id., at 46. See, e.g., Fenner v. Boykin, 271 U. S. 240 (1926); Douglas v. City of Jeannette, 319 U. S. 157 (1943). In holding that 42 U. S. C. § 1983 is an Act of Congress that falls within the “expressly authorized” exception to the absolute bar against federal injunctions directed at state court proceedings provided by 28 U. S. C. § 2283, the Court expressly observed that it did not intend to “question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.” Mitchum v. Foster, 407 U. S. 225, 243 (1972). Those principles preclude equitable intervention in the circumstances present here.
Respondents do not seek to strike down a single state statute, either on its face or as applied; nor do they seek to enjoin any criminal prosecutions that might be brought under a challenged criminal law. In fact, respondents apparently contemplate that prosecutions will be brought under seemingly valid state laws. What they seek is an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The order the Court of Appeals thought should be available if respondents proved their allegations would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption , of state proceedings to adjudicate assertions of noncompliance by petitioners. This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris, supra, and related cases sought to prevent.
A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable. In concluding that injunctive relief would be available in this case because it would not interfere with prosecutions to be commenced under challenged statutes, the Court of Appeals misconceived the underlying basis for withholding federal equitable relief when the normal course of criminal proceedings in the state courts would otherwise be disrupted. The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minara, 342 U. S. 117, 120 (1951). See also Cleary v. Bolger, 371 U. S. 392 (1963); Wilson v. Schnettler, 365 U. S. 381 (1961); Pugach v. Dollinger, 365 U. S. 458 (1961); cf. Rea v. United States, 350 U. S. 214 (1956). An injunction of the type contemplated by respondents and the Court of Appeals would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents’ broadly defined class. The Court of Appeals disclaimed any intention of requiring the District Court to sit in constant day-to-day supervision of these judicial officers, but the “periodic reporting” system it thought might be warranted would constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity. Cf. Greenwood v. Peacock, 384 U. S. 808 (1966). Moreover, because an injunction against acts which might occur in the course of future criminal proceedings would necessarily impose continuing obligations of compliance, the question arises of how compliance might be enforced if the beneficiaries of the injunction were to charge that it had been disobeyed. Presumably, any member of respondents’ class who appeared as an accused before petitioners could allege and have adjudicated a claim that petitioners were in contempt of the federal court’s injunction order, with review of adverse decisions in the Court of Appeals and, perhaps, in this Court. Apart from the inherent difficulties in defining the proper standards against which such claims might be measured, and the significant problems of proving noncompliance in individual cases, such a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted.
Respondents have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances — the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which respondents are allegedly .subjected. And if any of the respondents are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged. Open to a victim of the discriminatory practices asserted under state law are the right to a substitution of judge or a change of venue, Ill. Rev. Stat., c. 38, §§ 114-5, 114-6 (1971), review on direct appeal or on postconviction collateral review, and the opportunity to demonstrate that the conduct of these judicial officers is so prejudicial to the administration of justice that available disciplinary proceedings, including the possibility of suspension or removal, are warranted. Ill. Const., Art. VI, § 15 (e). In appropriate circumstances, moreover, federal habeas relief would undoubtedly be available.
Nor is it true that unless the injunction sought is available federal law will exercise no deterrent effect in these circumstances. Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U. S. C. § 242. See Greenwood v. Peacock, supra, at 830; United States v. Price, 383 U. S. 787, 793-794 (1966); United States v. Guest, 383 U. S. 745, 753-754 (1966); Screws v. United States, 325 U. S. 91, 101-106 (1945); United States v. Classic, 313 U. S. 299 (1941). Cf. Monroe v. Pape, 365 U. S. 167, 187 (1961). That section provides:
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined . . . or imprisoned . . . .”
Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U. S. 547 (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U. S. 106, 110-111 (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Ex parte Virginia, 100 U. S. 339 (1880). On the contrary, the- judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .” Gravel v. United States, 408 U. S. 606, 627 (1972).
Considering the availability of other avenues of relief open to respondents for the serious conduct they assert, and the abrasive and unmanageable intercession which the injunctive relief they seek would represent, we conclude that, apart from the absence of an existing case or controversy presented by respondents for adjudication, the Court of Appeals erred in deciding that the District Court should entertain respondents’ claim.
Reversed.
While the Court of Appeals did not attempt to specify exactly what type of injunctive relief might be justified, it at least suggested that it might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing.” 468 F. 2d, at 416. The dissenting judge urged that a federal district court has no power to supervise and regulate by mandatory injunction the discretion which state court judges may exercise within the limits of the powers vested in them by law, and that any relief contemplated by the majority holding which might be applicable to the pattern and practice alleged, if proven, would subject the petitioners to the continuing supervision of the District Court, the necessity of defending their motivations in each instance when the fixing of bail or sentence was challenged by a Negro defendant as inconsistent with the equitable relief granted, and the possibility of a contempt citation for failure to comply with the relief awarded. Id., at 415-417.
We have previously noted that “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e. g., Traficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 212 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968).” Linda R. S. v. Richard D., 410 U. S. 614, 617 n. 3 (1973). But such statutes do not purport to bestow the right to sue in the absence of any indication that invasion of the statutory right has occurred or is likely to occur. Title 42 U. S. C. § 1983, in particular, provides for liability to the “party injured” in an action at law, suit in equity, or other proper proceeding for redress. Perforce, the constitutional requirement of an actual case or controversy remains. Respondents still must show actual or threatened injury of some ldnd to establish standing in the constitutional sense.
There was no class determination in this case as the complaint was dismissed on grounds which did not require that determination to be made. Petitioners assert that the lack of standing of the named respondents to raise the class claim is buttressed by the incongruous nature of the class respondents seek to represent. The class is variously and incompatibly defined in the complaint as those residents of Cairo, both Negro and white, who have boycotted certain businesses in that city and engaged in similar activities for the purpose of combatting racial discrimination, as a class of all Negro citizens suffering racial discrimination in the application of the criminal justice system in Alexander County (though two white persons are named respondents), and as all poor persons unable to afford bail, counsel, or jury trials in city ordinance cases. The absence of specific claims of injury as a result of any of the wrongful practices charged, in light of the ambiguous and contradictory class definition proffered, bolsters our conclusion that these respondents cannot invoke federal jurisdiction to hear the claims they present in support of their request for injunctive relief.
Tr. of Oral Arg. 21, 23, 26.
It was noted in Stefanelli that in suits brought under 42 U. S. C. § 1983 “we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris, 189 U. S. 475, with Lane v. Wilson, 307 U. S. 268.” 342 U. S., at 122.
See n. 3, supra.
See n. 1, supra.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_usc1sect
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185
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
OIL CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION LOCAL NO. 4-23, et al., Plaintiffs-Appellants, v. AMERICAN PETROFINA COMPANY OF TEXAS, Defendant-Appellee.
No. 84-2322.
United States Court of Appeals, Fifth Circuit.
May 6, 1985.
Provost, Umphrey, McPherson & Swearingen, M. Diane Dwight, Port Arthur, Tex., for plaintiffs-appellants.
Goins, Underkofler, Crawford & Lang-don, Durwood D. Crawford, Steve Kardell, Jr., Dallas, Tex., for defendant-appellee.
Before WISDOM, WILLIAMS and HILL, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Appellants Oil, Chemical and Atomic Workers International Union Local No. 4-23, and Leo Max Hildabridle, Jr. contend that appellee American Petrofina Company of Texas must submit to arbitration their dispute over the propriety of Petrofina’s discharging an economic striker because of alleged improper conduct on the picket line. Petrofina counters that it has no obligation to undertake arbitration because its collective bargaining agreement with the Union expired before it fired the worker and because the new agreement does not apply retroactively. After a bench trial, the district court rendered judgment for Petrofina, 586 F.Supp. 643. Because we conclude that the new agreement requires arbitration of the discharge grievance, we reverse and remand the case with directions to order arbitration.
I.
The Union’s collective bargaining agreement with Petrofina expired on January 8, 1982, and the Union promptly initiated an economic strike at the company’s Port Arthur, Texas, refinery. Union members manned picket lines at the gates. Workers refused to cross the picket lines, but Petrofina management continued to work at the plant. Rancor flared up occasionally. Petrofina posted security guards.
The incident that generated the dispute at issue in this case occurred on February 20, 1982, along one of the picket lines. Union member Hildabridle allegedly brandished a knife at security guards, who soon summoned local police. Hildabridle allegedly repeated the assault after the police departed. Local authorities later charged him with a misdemeanor, but a jury found him not guilty. No other tribunal, including the National Labor Relations Board, has adjudicated the lawfulness of Hildabridle’s conduct on the picket line or the justification of the company in discharging him.
Petrofina informed Hildabridle of his termination by letter of May 27, 1982. The Union demanded arbitration of the discharge pursuant to the expired collective bargaining agreement, which prohibited firings “without just cause” and mandated arbitration of disputes over discharges, but Petrofina refused.
The strike lasted some eleven months, ending on December 20, 1982, when workers returned to their jobs. On that date, the Union and Petrofina signed a back-to-work agreement and tentatively approved a new collective bargaining contract. The latter document contained grievance and arbitration provisions identical to those in the expired agreement, and it, too, barred discharges without just cause. It said nothing of the Hildabridle dispute. The back-to-work agreement, however, recorded the disagreement over the arbitrability of Hildabridle’s termination: “The Union’s position is that such action is subject to the grievance and arbitration provisions and the Company’s position is that it is not.” The Union again filed a grievance ending in a demand for arbitration, this time pursuant to the new contract. The company again refused, and this suit resulted. The Union alleged that Petrofina’s discharge of Hildabridle without just cause and its refusal to submit the grievance to arbitration violated the new collective bargaining agreement and thus constituted a violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982), which authorizes suits to redress such contractual breaches.
The district court held a bench trial. Observing that any obligation to arbitrate a dispute must arise from a contractual undertaking, the court held that the arbitration clauses in both the old and the new collective bargaining agreements did not apply to the controversy over Hildabridle’s discharge. The former contract had ended, and the new one had not taken effect when Hildabridle lost his job. The court accordingly refused to order arbitration and dismissed the Union’s claim. The Union appeals.
II.
Established principles make resolution of this case straightforward. As a general rule, “an employer may not discharge an economic striker.” International Union of Electrical, Radio and Machine Workers v. Ingram Mfg. Co., 715 F.2d 886, 890 (5th Cir.1983) (citing NLRB v. International Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972)), cert. denied, — U.S. -, 104 S.Ct. 1711, 80 L.Ed.2d 184 (1984). To the extent that federal labor law protects his employment, therefore, the striker remains an “employee” until the strike ends. See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 256, 59 S.Ct. 490, 496, 83 L.Ed. 627 (1939) (citing 29 U.S.C. § 152(3)). It follows that until there is an adjudication of a company’s right to fire an economic striker he remains an employee. Thus, Hildabridle was legally still in the status of an employee when the strike ended and the new contract went into effect. The failure of the company to treat him as an employee under the new contract raised the issue of the propriety of his discharge under that agreement.
What is critical to the resolution of the appeal in this case is the firm recognition by the courts that they lack authority to decide at this stage of a controversy such as this whether the grievance procedure and arbitration process provided for in the new contract is applicable to Hildabridle’s discharge. All the Union needs to show to remove from the courts the power to decide whether this grievance is arbitrable under the new contract is that there is at least some possibility that it is. Whether this dispute is arbitrable under the new contract is an issue that the parties must submit in the first instance to the arbitrator. In United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the Supreme Court spoke with clarity and firmness concerning the obligation of the parties to submit to the arbitrator the issue of arbitrability in a case such as this. The Court said:
[T]he judicial inquiry under § 301 [of the LMRA] must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should, not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
Id. at 582-83, 80 S.Ct. at 1353.
It cannot be said with “positive assurance” that the arbitration clause in the new contract cannot be applicable to this dispute. All that needs to be shown, and it was clearly shown in this case, is that because Hildabridle was an economic striker, and there had been no adjudication of a right to discharge him during the strike, he remained an employee. He was not effectively discharged until the company refused to reinstate him when the new contract went into effect. It is up to the arbitrator, therefore, to decide in the first instance whether the grievance procedure and arbitration promise in the new contract are applicable to Hildabridle’s discharge. If he decides that they are, he then can go on to decide on the merits the issue of the justification for the discharge.
The National Labor Relations Board also has the authority to decide whether there was justification for firing a striker during an economic strike. Board jurisdiction, however, does not bar an obligation to arbitrate the same dispute. The “congressional policy [is] in favor of settlement of disputes by the parties through the machinery of arbitration____” Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1353. The Board has a specific policy of deferring to arbitration of disputes where it also has jurisdiction. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 270, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1964); Smith v. Evening News Ass’n, 371 U.S. 195, 198 n. 6, 83 S.Ct. 267, 269 n. 6, 9 L.Ed.2d 246 (1962). Further, the fact that the Board refused to issue a formal complaint on behalf of the Union against the company for discharging Hildabridle is not controlling. Luckenbach Overseas Corp. v. Curran, 398 F.2d 403, 406 (2d Cir.1968). See R. Gorman, Labor Law, ch. 23, § 12, at 568-73 (1976).
Finally, there is an additional significant consideration establishing that the issue of the arbitrability of this dispute is for the arbitrator in the first instance. The fact is that the parties themselves agreed to disagree about whether the dispute was arbitrable. This alone under Warrior & Gulf is enough to require submission of the issue of arbitrability to the arbitrator.
Our jurisdiction to interfere with contract arbitrations set up in collective bargaining agreements is highly restricted. International Union v. E-Systems, Inc., 632 F.2d 487, 489 (5th Cir.1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1979, 68 L.Ed.2d 298 (1981); Boise Cascade Corp. v. United Steelworkers of America, Local 7001, 588 F.2d 127, 128 (5th Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979). We conclude that the district court was in error in refusing to order arbitration of the Union’s grievance involving the asserted discharge of Hilda-bridle for alleged picket line misconduct during an economic strike while there was no contract in effect. Under well-established legal authority, the issue of whether this dispute falls under the arbitration clause of the newly-instituted collective bargaining agreement between the parties must be submitted to an arbitrator pursuant to that agreement since we cannot say with positive assurance that the arbitration clause of that agreement is not susceptible to an interpretation that covers this dispute. The case will be remanded to the district court for the issuance of an order directing the parties to proceed to arbitration under the terms of the December 1982 collective bargaining agreement.
REVERSED AND REMANDED.
. See, e.g., United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).
. Section 2(3) of the National Labor Relations Act provides, in relevant part: “The term ‘employee’ shall include any employee ..., unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute____” 29 U.S.C. § 152(3) (1982).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
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songer_usc1sect
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Robert DALL, Defendant-Appellant.
No. 79-1198.
United States Court of Appeals, First Circuit.
Argued Sept. 11, 1979.
Decided Nov. 13, 1979.
Francis M. Jackson, III, South Portland, Me., by appointment of the Court, with whom Nisbet, MacNichol & Ludwig, South Portland, Me., was on brief, for defendant-appellant.
Margaret D. McGaughey, Asst. U. S. Atty., Portland, Me., with whom George J. Mitchell, U. S. Atty., Portland, Me., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, DOOLING, Senior District Judge.
Of the Eastern District of New York, sitting by designation.
DOOLING, Senior District Judge.
Appellant was convicted in the United States District Court for the District of Maine on a one count indictment charging him with participation in the interstate transportation of stolen goods in violation of 18 U.S.C. §§ 2314 and 2. Appellant moved before trial, on the record earlier made in a related case, to suppress the use in evidence against him of certain allegedly stolen antique furniture that had been seized in Rhode Island, by the Rhode Island State Police from a pickup truck registered in appellant’s name. Judge Gignoux denied the motion to suppress, and the correctness of that ruling is the sole question presented on this appeal.
The facts are not in substantial dispute. On December 24,1976, at about 10:30 a. m., Trooper Richard Hurst saw a blue Chevrolet pickup truck, fitted with a white “camper cap”, heading north on the Post Road in North Kingston, Rhode Island, at a rate exceeding the speed limit; Hurst pursued and stopped the truck. There were three men in the cab. None of them had an operator’s license with him, and only one of them had any identification with him — a card in a name other than his own. The driver, later identified as Richard B. Hudson, produced a Maine registration for the vehicle in the name of Robert Dali, the appellant. Appellant was not in the vehicle. The men in the vehicle with Hudson were Gary King and Michael Holmes, the man who produced “some sort of welfare card” in the name of Helms, saying, at first, that it was his name. Hudson told Hurst that he had a valid Maine operator’s license but did not have it with him. Hurst tried unsuccessfully to have a computer check made on the vehicle and the three men through his cruiser radio; then, since none of the three had an operator’s license, he requested them to go to the nearby police barracks to confirm their identities and the ownership of the truck, and they agreed to do so. At the barracks, the three men’s names, dates of birth and addresses were taken down, and the trooper on the desk, recognizing the name Hudson, produced a police “flyer” indicating that Hudson was from Maine and had been involved in break-ings and enterings, and stolen goods, and so forth, in Rhode Island and in the New England area. Preliminary investigation showed that none of the three men was wanted by the police in Rhode Island or elsewhere. They were detained, however, pending investigation, on the ground of their inability to identify themselves, and of their possession of an out-of-state motor vehicle without having a license to operate it.
At Hurst’s request Detective Corporal Thomas Moffatt came to the barracks and interviewed the three men. Hudson told Moffatt that he had borrowed the truck from appellant in Maine on the preceding day to drive down to East Greenwich, Rho-de Island, to see a friend, whom he named, and that he and his two companions had spent the night there. Hurst recognized the “friend’s” name as that of someone said to be involved in breakings and enterings. Hudson said that his East Greenwich friend had not been at home, and that he and his companions were heading back to Maine when stopped.
Moffatt advised Hudson that their efforts to reach Dali by telephone had so far been unsuccessful. He also told Hudson that he had a bulletin, which he read to him, put out by the Lewiston police department, about his being a suspect in receiving stolen goods, such as antiques and rugs.
Hurst had meanwhile ascertained that the camper cap on the pickup truck was locked; when he looked into it as best he could by moving a louvered side window a little with his finger, he had seen that there was old furniture or antique furniture in the cap. Moffatt and Hurst asked Hudson if he would mind if they looked into the truck, and Hudson answered that he didn’t have a key to get into the cap. Moffatt asked Hudson if he would sign a consent-to-search form for the truck, and Hudson said he definitely would not sign anything, that the stuff did not belong to him, that he didn’t know what was in the cap, and that he hadn’t looked in “there” or touched the back of the truck at all. Hudson, and, inferentially, the others, were advised that the truck would not be released to them, since none had a license with him, but that it would be impounded. The three were told that they would be released when their identities were confirmed, and that no charges would be brought if the owner confirmed that he had given them permission to have the truck.
Another attempt was made to reach appellant, again without success, and Hudson was then asked specifically if he had a key to the back of the camper. He said that he had only the ignition key, and that neither he nor the other two men had any keys to the cap. Hudson was then told that the police were impounding the truck, that it had to be inventoried, and that unless the police had a key they were going to have to pry up the fiber glass door at the back of the truck to lift out and inventory the contents. Before Hurst went forward with the formal impounding of the truck and inventorying its contents, Moffatt informed his superior, Detective Lieutenant Francis J. Martin, that the truck was going to be held until the owner came from Maine for it, and Martin told Moffatt to make sure that it was the owner in fact who did come to Rhode Island to pick up the truck.
Moffatt testified that he concluded that there were no criminal violations for the detectives to follow up on but only a motor vehicle violation, that he had not looked into the cap to see what it held, and that he turned the matter back to Hurst, telling him to seize the vehicle and hold it until the owner contacted him. Moffatt then had Hurst open the back of the truck, remove the contents and place them in a safekeeping stall in the barracks garage. The contents were inventoried; the truck remained in the barracks parking lot.
The District Judge found, in accordance with the testimony of Moffatt, Martin and Hurst, that it was the regular practice of the Rhode Island State Police to impound a vehicle in a variety of circumstances, including instances in which an out-of-state driver is stopped, cannot produce an operator’s license or identification and is driving a vehicle that belongs to someone else. The District Judge found that when a vehicle was impounded the regular practice was to secure it, to lock the vehicle, and to inventory the contents of the vehicle in order to protect the Department against allegations that property had been lost, damaged or stolen and also to make sure that there was no explosive or otherwise dangerous material in the vehicle. The evidence was, and the District Court found, that the parking lots at the barracks were not enclosed or fenced. There was testimony that the garage space inside the barracks building is not used for impounded vehicles but for police vehicles. Martin indicated that the contents of a vehicle that was being impounded were in State Police practice inventoried if the vehicle contained an unusual amount of goods or was to be kept in an area to which others had access.
About three or four o’clock in the afternoon, after the vehicle had been opened and its contents inventoried and stored, Hurst did reach appellant on the telephone. Appellant told Hurst that the truck was his and that he had lent it to Richard Hudson. Hurst explained that the truck had been stopped, that Hudson and the two men with him had no licenses or valid identifications, and that appellant would have to come to Rhode Island to claim the truck and show his ownership of any contents that might be in it. Appellant then said that the truck was empty when he had “just” lent it to “them” to use. Appellant said that he would come to pick up the truck, and later he did.
No charge was made against any of the three men by the Rhode Island police, and they were released at about 7 or 7:30 P.M., but a summons was issued to Hudson for driving without having an operator’s license in his possession.
Judge Gignoux, after finding the facts in detail, concluded that the undisputed evidence established that appellant’s pickup truck was legally impounded in accordance with standard procedures of the Rhode Island State Police, and that the search of the impounded vehicle was carried out in accordance with standard procedures of the Rhode Island State Police. He found accordingly, on the authority of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and the cases following it, that the warrantless search of the pickup truck did not violate the Fourth Amendment. Having decided that the search was permissible under Opperman as a routine inventory search conducted in accordance with established police procedures, Judge Gignoux did not address the question of appellant’s “standing”, but he observed that United States v. Nunn, 525 F.2d 958, 959, rehearing denied, 527 F.2d 1390 (5th Cir. 1976), relied on by the United States Attorney as showing that appellant’s personal rights were not violated by the search of the pickup truck, might well be considered inconsistent with the “standing” principles enunciated in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).
It is not necessary to consider whether police officers conducting a criminal investigation must put aside established inventory and security procedures and seek a warrant before proceeding further in the search of an impounded motor vehicle when the circumstances suggest that the vehicle contains the fruits or evidence of a crime. Cf. United States v. Prescott, 599 F.2d 103, 106 (5th Cir. 1979); United States v. Edwards, 577 F.2d 883, 893 (5th Cir. 1978); United States v. Hall, 565 F.2d 917, 922 (5th Cir. 1978). Judge Gignoux found on ample evidence that, by the time the truck was impounded and its contents inventoried, Moffatt had concluded that the incident did not involve a criminal matter warranting further investigation, but, instead, was a routine traffic offense; for that offense a formal summons was issued to Hudson. Since appellant had confirmed Hudson’s story that the vehicle had been lent to him, Hudson was not charged with theft or with unlawful possession of the vehicle. Neither Holmes nor King were charged with any offense. There was no criminal investigation afoot. Under Opperman the occasion was, therefore, a proper one for the Rhode Island police to secure the pickup truck and inventory its contents.
Appellant argues that since the camper cap was locked, it was already secure whether the truck was left in one of the open parking lots of the barracks or put into the police garage. But it was for the State Police to determine what security measures were appropriate, and the measures they took were those most consistent with the usual objectives in such cases — to protect the owner’s property, to guard the police against unfounded claims over lost or stolen property, and to protect the police from potential danger (South Dakota v. Op-permann, supra, 428 U.S. at 369, 96 S.Ct. 3092).
In any case, the inventory search did not violate any rights of appellant. On his motion to suppress appellant had the burden of establishing that his Fourth Amendment rights were violated by the search and seizure. Rakas v. Illinois, 439 U.S. 128, 130-131, fn. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Simmons v. United States, 390 U.S. 377, 389, 391, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 261-262, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). There is no question here of “automatic standing”. See United States v. Salvucci, 599 F.2d 1094, 1097 (1st Cir. 1979). Possession was not an essential element of the offense, for the indictment charged both the interstate transportation of stolen goods knowing them to have been stolen and aiding and abetting the commission of that crime (United States v. Pelle-grino, 470 F.2d 1205, 1208-09 (2d Cir. 1972); United States v. Tannuzzo, 174 F.2d 177, 180 (2d Cir. 1949)).
To establish that his Fourth Amendment rights were violated, appellant relies on the stipulated fact that he was at all relevant times the owner of the pickup truck from which the goods were seized, combined with the circumstances that the camper cap was locked and the key not in the possession of Hudson or either of his companions. These facts do not suffice to establish that appellant had a constitutionally protected privacy interest in the cap when it was opened and its contents inventoried.
Ownership alone is not enough to establish a reasonable and legitimate expectation of privacy. Ownership is relevant to the inquiry, (Rakas v. Illinois, supra, 489 U.S. at 148, 99 S.Ct. 421; Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Hunt, 505 F.2d 931, 937 (5th Cir. 1974)), but the total circumstances determine whether the one challenging the search has a reasonable and legitimate expectation of privacy in the locus of the search. United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir. 1978); United States v. Nunn, 525 F.2d 958, 959 (5th Cir. 1976); see United States v. Hunt, supra, 505 F.2d at 937, 943.
United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), relied on by appellant, is an extreme case; the defendant there owned the vehicle searched, had simply parked it in another’s driveway without authorizing the bailee to use it, and had advised the bailee that he was going to get the car that day (id. at 737). Unlike the present case, Mulligan was a case of a presently asserted possessory interest in an owned vehicle. United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976), also cited by appellant, does not rest in its discussion of “standing” on ownership concepts but principally on the “target” theory drawn from Jones v. United States, supra, 362 U.S. at 261, 80 S.Ct. 725; that theory was explicitly rejected in Rakas (439 U.S. at 133-138, 99 S.Ct. 421).
Appellant argues his stipulated ownership, the locked cap, and Hudson’s disclaimers of knowledge of the contents of the cap and of access to it constitute such an implicit assertion of privacy as must induce this court to recognize a legitimate expectation of privacy for the contents of the camper cap comparable to that recognized in Arkansas v. Sanders,-U.S.-, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235 (1978), United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979), and two pre-Opperman cases, United States v. Lawson, 487 F.2d 468, 475-477 (8th Cir. 1973), and Williams v. United States, 412 F.2d 729, 730, 73A-735 (5th Cir. 1969). In Sanders, however, the Supreme Court recognized a significant difference between automobile searches into places that constitute “some integral part of the automobile”, as in this case, and searches of separate containers, such as luggage placed in a vehicle. Arkansas v. Sanders, supra, 99 S.Ct. at 2592-2593. See also Bloomfield, supra, 594 F.2d at 1203 (knapsack in automobile). The already diminished expectation of privacy that attaches to motor vehicles is still further attenuated when the owner had given over possession to another for the other’s own uses to the temporary exclusion of the owner. Cf. United States v. Mendoza, 473 F.2d 692, 695-696 (5th Cir. 1972); United States v. Dyar, supra, 574 F.2d at 1390; United States v. Nunn, supra, 525 F.2d at 959. The legitimate and reasonable expectation of privacy, then, attached to Hudson’s possession and not to appellant’s title, the symbol of which was also in Hudson’s possession. That Hudson denied knowledge of the contents of the camper cap, and did not have a key for it, proved nothing. Hudson did not assert, for what that would have been worth, that appellant had locked the cap, or had retained the key, or that any contents of the truck belonged to appellant. The identity of the person who had loaded and locked the camper cap was a matter of speculation and no more.
When appellant was reached on the telephone after the inventory search, he asserted to Hurst that the truck was empty, that there was nothing in it, and that he had just lent it to “them” to use. These statements, coming after the search, would have been altogether irrelevant if the question had been whether there was probable cause to search. But the issue here is the identity of the person whose Fourth Amendment rights was invaded, if any right was invaded, and whose legitimate expectation of privacy was offended. On that issue evidence admissible against the appellant at a hearing on a motion to suppress would include statements relating to his privacy interest that he had made before the hearing. He could, under the protection of the Simmons case, deny the statements to which Hurst testified, or explain them, but he chose not to do so. The consequence is that the unexplained statements are strong evidence that appellant had no legitimate expectation of privacy with respect to a search of the camper cap. Cf. Brown v. United States, supra, 411 U.S. at 229-230, 93 S.Ct. 1565. In a word, appellant failed to sustain the burden of proving that he had a legitimate expectation of privacy in the camper cap: neither the testimony of the police witnesses nor the stipulation of title sufficed to support that burden.
Affirmed.
Kelly has been criticized on other grounds. See United States v. Sanders, 592 F.2d 788, 792 (5th Cir. 1979); United States v. Sherwin, 539 F.2d 1, 7 (9th Cir. 1976).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
In the Matter of STEEL STRUCTURES, INC., Bankrupt-Appellee, v. STAR MANUFACTURING COMPANY and Detroit Gasket & Manufacturing Co., Petitioners-Appellants.
Nos. 72-1171, 72-1172.
United States Court of Appeals, Sixth Circuit.
Aug. 3, 1972.
Hugh W. Morgan, James A. Ridley, III, of Kramer, Dye, Greenwood, Johnson, Rayson & McVeigh, Knoxville, Tenn., James K. Giffen, of Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., for appellants.
Issie L. Jenkins, Scott P. Crampton, M. Rothwacks, B. N. Hollander, of Dept, of Justice, Tax Division, Washington, D. C., John L. Bowers, Jr., U. S. Atty., Leon Steinberg, Trustee in Bankruptcy, Knoxville, Tenn., for appellees.
John A. Walker, Jr., Knoxville, Tenn., of Egerton, McAfee, Armistead, Davis & McCord, Knoxville, Tenn., for trustee.
Before PHILLIPS, Chief Judge, and TUTTLE and O’SULLIVAN, Senior Circuit Judges.
Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for tbe Fifth Circuit, sitting by designation.
PER CURIAM.
This is an appeal from the decision of the District Court, 346 F.Supp. 332, affirming an order of the Referee in Bankruptcy which set aside a transaction as a fraudulent conveyance and voidable preference. We affirm on the basis of the comprehensive memorandum of Referee Clive W. Bare, set forth as an Appendix hereto.
Star Manufacturing Company further appeals from the District Judge’s refusal to receive additional evidence. The District Court found that “[t]he proposed evidence would not [have] change[d] [its] conclusions.” We agree. Star has failed to show such abuse of discretion as would warrant overturning this decision.
Affirmed.
APPENDIX
MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
I
This controversy over the execution of a fourth mortgage on the bankrupt’s real property which is attacked by the trustee as a lien obtained by legal or equitable proceedings within four months of bankruptcy, void under Sec. 67a(1) of the Bankruptcy Act; and/or a fraudulent transfer under Sec. 67d(3) of the Act; and/or a voidable preference under Sec. 60a and b of the Act. A fifth mortgage executed by the bankrupt at the same time is pertinent only insofar as it pertains to the entire transaction involving the bankrupt; Star Manufacturing Company of Oklahoma; and Detroit Gasket and Manufacturing Company, as the funds realized by the trustee from the sale of the real property are sufficient only to pay the first three mortgages in full and $10,000.00 on the fourth mortgage or to general creditors, as the facts and law require. Facts which have either been stipulated by the parties or found by the court are as follows.
II
(1) Steel Structures, Inc. (hereafter Steel Structures or bankrupt), entered into a contract with Detroit Gasket and Manufacturing Company (hereafter Detroit Gasket) to construct a steel addition /to an existing building belonging to Detroit Gasket in Newport, Tennessee. The contract was in the approximate amount of $27,000.00 and not bonded.
(2) Star Manufacturing Company of Oklahoma (hereafter Star) furnished materials for this construction to Steel Structures in the amount of $18,045.04.
(3) The contract was completed and Detroit Gasket paid Steel Structures in full in December, 1969, and/or January, 1970.
(4) On January 30, 1970, Star filed a Notice of Lien for materials and supplies furnished with the Register of Deeds, Cocke County, Tennessee. This notice of lien was filed against the property of Detroit Gasket.
(5) On April 30, 1970, Star filed an Original Lienor’s Bill in the Chancery Court for Cocke County, Tennessee, naming as defendants Steel Structures and Detroit'Gasket. This Bill was filed to enforce Star’s claimed lien for materials and supplies as set forth in the Notice of Lien described above. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970.
(6) An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On or about May 29, 1970, Detroit Gasket filed an Answer denying the validity of the claimed lien.
(7) On July 29, 1970, Hugh W. Morgan (an attorney representing Star), Thomas S. Matthews (President of Steel Structures), Doyle Vaden (Vice-President and Secretary of Steel Structures), John O. Threadgill (an attorney representing Steel Structures), and James K. Giffen (an attorney representing Detroit Gasket), assembled at the office of John O. Threadgill, and the Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket was settled on the following basis:
Steel Structures executed and delivered to Detroit Gasket a promissory note in the amount of $16,276.54 secured by a fourth mortgage on Steel Structures’ real estate located in Knox County. Detroit Gasket delivered two checks to Steel Structures payable to Steel Structures and in the amounts of $16,240.54 and $36.00. The former check was endorsed by Steel Structures and delivered to Star together with a promissory note in the amount of $1,-804.50 secured by a fifth mortgage on the Steel Structures, Knox County, real estate. The latter check was delivered to the Cocke County Chancery Court Clerk for payment of court costs of Star’s Lienor’s Bill filed in that court. Star executed a- release of its claimed lien and all the parties approved for entry an agreed order of dismissal with full prejudice of the suit commenced by Star against Steel Structures and Detroit Gasket.
(8) On July 29, 1970, after the transaction referred to in paragraph (7), the assets and liabilities of Steel Structures were the same as set forth in its petition in bankruptcy filed on August 11, 1970. The summary of such debts and assets taken from Schedules A & B of such petition are as follows:
Taxes due United States............$ 23,959.73
Taxes due States................... 1,630.73
Secured claims..................... 48,287.04
Unsecured claims.................. 107,185.17
Accommodation Paper.............. 7,440.22
Schedule A — Total.............$188,502.89
Real Estate......................$ 35,000.00
Stock In trade.................... 55,115.00
Debts due on open accounts.......... 75,319.58
Deposits of money In banks and elsewhere................. 50,00
Schedule B — Total.............$165,484.58
(9) During May or June of 1970, Mr. Matthews, President of Steél Structures, and Doyle Vaden, Vice-President and Secretary of Steel Structures, discussed the advisability of filing a petition in bankruptcy on behalf of said corporation with E. L. Hicks, Certified Public Accountant of Knoxville, Tennessee. During the latter part of July or the first part of August, 1970, Messrs. Matthews and Vaden discussed the filing of a petition in bankruptcy for the corporation with Max M. Morrison, attorney of Knoxville, Tennessee. Mr. Morrison’s petition for compensation at attorney for the bankrupt filed September 3, 1970, reflects conferences with officers of the bankrupt commencing August 2 and ending August 10 when the petition and completed schedules were sworn to by-Mr. Matthews.
III
Lien obtained by legal or equitable proceeding within four months before the filing of the bankruptcy petition.
The trustee’s first attack on the transaction in question is based on Sec. 67a (1) of the Bankruptcy Act which provides as follows:
“Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this Act.”
The trustee cannot prevail under this section. No lien was obtained by legal or equitable process or proceedings against any property of the bankrupt. The Original Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket in the Chancery Court for Cocke County, Tennessee, sought to enforce a lien against property owned by Detroit Gasket — not by the bankrupt. Also, Sec. 67a(l) relates to and invalidates liens obtained by legal or equitable proceedings and not contractual liens. Such liens, however, may, of course, be invalidated if they constitute voidable preferences under Sec. 60 of the Act or fraudulent conveyances under Sec. 67d.
Collier summarizes the conditions that must be satisfied in order for the trustee to avoid a lien under Sec. 67a(l) as follows:
“A lien obtained in or pursuant to judicial proceedings, to be voidable at the suit of the trustee or the debtor, as the case may be, must, however, satisfy certain conditions: (1) it must attach the property of the bankrupt which passes to the trustee under Sec. 70a or is exempt under Sec. 6; (2) it must have been acquired within four months prior to the initiation of the bankruptcy proceedings ; and (3) it must either have attached during the insolvency of the bankrupt,, or it must have been sought and permitted in fraud of the provisions of the Act.” Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.03, p. 66.
As heretofore stated, neither Star nor Detroit Gasket obtained a lien against the bankrupt’s property in or pursuant to a judicial proceeding. The trustee’s attack under Sec. 67a(l) therefore fails.
IV
Fraudulent transfer under Sec. 67d(8) of the Bankruptcy Act.
Sec. 67d(3) enacts:
“Every transfer made and every obligation incurred by a debtor who is or will thereby be rendered insolvent, within four months prior to the filing of a petition initiating a proceeding under this Act by or against him is fraudulent, as to then existing and future creditors: (a) if made or incurred in contemplation of the filing of a petition initiating a proceeding under this Act by or against the debtor or in contemplation of liquidation of all or the greater portion of the debt- or’s property, with intent to use the consideration obtained for such transfer or obligation to enable any creditor of such debtor to obtain a greater percentage of his debt than some other creditor of the same class, and (b) if the transferee or obligee of such transfer or obligation, at the time of such transfer or obligation, knew or believed that the debtor intended to make such use of such consideration. The remedies of the trustee for the avoidance of such transfer or obligation and of any ensuing preference shall be cumulative: Provided, however, That the trustee shall be entitled to only-one satisfaction with respect thereto.” Sec. 67d(6) enacts:
“A transfer made or an obligation incurred by a debtor adjudged a bankrupt under this Act, which is fraudulent under this subdivision d against creditors of such debtor having claims provable under this Act, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value... ”
Sec. 67e of the Bankruptcy Act of 1898 enacted that all conveyances, transfers, assignments, or encumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt within four months prior to the filing of the bankruptcy petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against creditors except as to purchasers in good faith and for a present fair consideration. When subdivision (d) of Sec. 67 of the Bankruptcy Act was set up in the course of the 1938 revision, as a substitute for the former first sentence of Sec. 67e, Congress introduced as Paragraph (5) of Sec. 67(d) a provision making fraudulent transfers and obligations within four months of the filing of a bankruptcy petition, “made or incurred with intent to use the consideration. to effect a preference to a third person voidable under Sec. 60 of this Act.” The purpose of this provision, according to the House Judiciary Committee Report, was to cure a conflict in court decisions. The Supreme Court in Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917), had held that a mortgage was void under Sec. 67e of the Act, as in fraud of creditors, where it was given to the debtor’s brother-in-law to obtain funds to pay off the debt- or’s liability to a bank on forged documents, the debtor being hopelessly insolvent and the mortgagee fully aware of all the facts. Remington on Bankruptcy, Vol. 4, Sec. 1647, p. 149. Remington goes on to say that thereafter some of the lower courts reached the same result, that some went even further, but that others reached a contrary result. Remington, Vol. 4, pp. 150 and 151.
The 1938 version of Sec. 67d(3) was amended in 1952. Again quoting Remington—
“The 1938 version of Sec. 67(d)(3) was subjected to two criticisms: (1) it went considerably beyond the Supreme Court’s decision in Dean v. Davis and, as phrased, extended to any ease where an insolvent debtor borrowed money on security intending to use the security to pay off unsecured creditors; (2) it limited its application to instances where the intent was to effect preferences voidable under Sec. 60. In connection with proposed revision of this paragraph by the Act of July 7, 1952, the Report of the House Judiciary Committee recognizes the force of these criticisms. With respect to the latter, it says that ‘If anything, the estate needs greater protection in a case where the preference is not voidable [under Sec. 60], since the need for pursuing the auxiliary transaction is more acute where the preferred creditor is invulnerable.’ ” Remington, Vol. 4, p. 152.
To meet these objections and to provide a more accurate statutory embodiment of Dean v. Davis, the present language of Sec. 62d(3) (sic) was enacted.
Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.38, p. 545, states that 67d(3), as amended in 1952, “is designed to coordinate with Secs. 60 and 67a(l)(b) in codifying the rule of Dean v. Davis.”
To reach a determination of the issues involved in the present controversy, the actual situation that existed on July 29, 1970, must be scrutinized. Steel Structures, in the latter part of 1969, completed the construction of an addition to an existing building on Detroit Gasket’s property. Detroit Gasket paid Steel Structures approximately $27,000.-00 in full for this work. Steel Structures, while constructing this building, had purchased materials for such construetion from Star. Steel Structures did not pay Star for these materials. Star’s materials’ claim amounted to $18,045.04. On January 30, 1970, Star filed notice of lien and on April 30, 1970, filed a lienor’s bill against Detroit Gasket’s property. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970. Tennessee Code Annotated 64-1101 et seq. An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On May 28, 1970, Detroit Gasket filed an answer denying the validity of the claimed lien. Steel Structures did not answer. Steel Structures did not have the money to satisfy the lien claim. On July 29, 1970, Detroit Gasket advanced Steel Structures $16,276.54 to pay Star 90 per cent of its debt so that the asserted lien would be released. To secure this advance, Detroit Gasket took a fourth mortgage on Steel Structures’ property. As this advance did not pay Star in full, it took a fifth mortgage on Steel Structures’ property in the amount of $1,804.50 for the balance due on the Detroit Gasket job.
The parties agree that for the trustee to prevail under Sec. 67d(3) he must allege and prove the following:
(1) That the debtor has made a transfer of his property or incurred an obligation;
(2) That the debtor was insolvent at the time or as a result of the transfer or obligation;
(3) That the transfer or obligation became effective within four months of the filing of the petition initiating a proceeding under the Bankruptcy Act;
(4) That the transaction must have been entered into in contemplation of the filing of such a petition or in contemplation of liquidation of all or the greater portion of the debtor’s property;
(5) That the transaction must have been entered into with the intent to use the consideration obtained to enable a creditor of the debtor to obtain a greater percentage of his debt than some other creditor of the same class;
(6) That the transferee or obligee must, at the time of the transaction, know or believe that the debtor intends to make such use of the consideration.
See generally Collier, 14th Ed., Vol. 4, Sec. 67.38.
From the stipulated facts, the parties also agree that the bankrupt made a transfer of property (Element (1) above); that the bankrupt was insolvent at that time (Element (2) above); and that such transfer was effective within four months of bankruptcy (Element (3) above). This leaves for consideration by the court Elements (4), (5), and (6).
At the outset, it appears appropriate to point out that, for the trustee to avoid the transfer in question under Sec. 67d(3) of the Bankruptcy Act, a finding of “fraudulent intent” is not required, nor is the question of “fair consideration” or “good faith” involved. Stripped to its essential elements, this court’s decision under Sec. 67d(3) must be based on findings of whether (1) the transaction was entered into in contemplation of the bankrupt’s filing of a bankruptcy petition; (2) with the intent to use the consideration obtained to enable a creditor (Star) to obtain a greater percentage of its debt than some other creditor of the same class; and (3) Detroit Gasket’s knowledge or belief that Steel Structures intended to make such use of the proceeds.
Contemplation of Bankruptcy
The testimony of Mr. Matthews, president of Steel Structures, on this point is clear:
Q. — At this time [July 29] were you contemplating filing a petition in bankruptcy for the corporation?
A. — It looked pretty evident, Mr. Brooks. Yes, sir.
* -x- -x- * * -x-
Q. — You just testified that at that time it looked imminent that you were to file a petition in bankruptcy. Had you decided to file a petition in bankruptcy on July 29?
A. — No, sir. I don’t think so.
Q. — Had you consulted an attorney on July 29?
A. — Yes, sir. I had talked to an attorney prior to that time.
Q. — I believe Mr. Morrison represented you. Did you talk to Mr. Morrison about this?
A. — Yes.
Q. — Prior to that time?
A. — Yes.
Mr. Matthews further testified that, prior to July 29, 1970, he had discussed bankruptcy with Mr. Hicks, Steel Structures’ auditor. Three days after the July 29 transaction, Mr. Matthews actually went to an attorney who commenced preparation of the bankrupt’s petition and schedules.
Detroit Gasket insists that the purpose of the loan was to enable Steel Structures to continue in business and obtain materials from Star, its principal supplier. At one point Mr. Matthews testified that, when he executed the mortgage, he hoped to induce Star to extend further credit. The plain facts, however, form no basis for this expectation. Even after executing the two mortgages, Steel Structures still owed Star $28,000.00 on another job. Star had not extended credit to Steel Structures for many months. Star, therefore, was not a major supplier of Steel Structures on July 29, 1970, as insisted by Detroit Gasket.
Although the stipulation entered into between the parties indicates insolvency of some $23,000.00 on July 29, 1970, the actual amount of insolvency was much greater. Three accounts receivable carried on Steel Structures’ books in the amount of some $57,000.00 were either disputed or uncollectable. In June, 1970, its business had been seized by Internal Revenue agents but released about a week later when it was able to raise $11,000.00. Even this payment did not bring its tax account to a current status, as on July 29, 1970, it apparently owed an additional $25,000.00 for withholding and social security taxes. In 1967, 1968, and 1969 its total losses had exceeded $125,000.00. It was indebted to some one hundred twenty-five unsecured creditors with claims totaling over $90,000.00. These facts, of course, were known to Steel Structures’ president, Mr. Matthews, on July 29, 1970.
It is my conclusion that, when Steel Structures entered into the transaction on July 28, 1970, it was contemplating bankruptcy. In fact, such date can be considered the “eve of bankruptcy,” for preparation of the bankruptcy petition and schedules commenced within seventy-two hours thereafter.
Under Sec. 67d(3) the trustee is not required to show that the knowledge or belief of the transferee or obligee extended to the debtor’s contemplation of liquidation or a proceeding under the Bankruptcy Act. “The statute requires only knowledge or belief ‘that the debtor intended to make such use of such consideration,’ i. e„ that the debtor intended ‘to use the consideration... to enable any creditor to obtain a greater percentage of his debt than some other creditor of the same class.’ Such a belief or knowledge includes a realization or surmise, at least, that the debtor is insolvent.” Collier, 14th Ed., Vol. 4, Sec. 67.38, p. 554 (emphasis added).
Clearly, the transfer in question diminished Steel Structures’ assets available for payment to general creditors. Prior to the transaction, Star was an unsecured creditor in the amount of $18,045.04 (as to the transaction under consideration). After the transaction, Star’s unsecured indebtedness had been reduced by $16,240.54 and Detroit Gasket was a secured creditor in that amount (plus an additional $36.00 advanced by Detroit Gasket to pay court costs in Star’s lienor’s suit). Star, thereafter, was also a secured creditor holding a fifth mortgage on the bankrupt’s property in the amount of $1,804.50.
The sole purpose of the transaction was to enable Steel Structures to pay Star an unsecured debt. All of the parties to the transaction knew this to be true. It was intended that the funds be used for that purpose; the funds were so used. Detroit Gasket’s check was not even deposited in Steel Structures’ bank account but immediately endorsed over to Star and deposited to its own account.
Intent
It cannot be seriously disputed that Steel Structures’ intent was to use the consideration obtained from Detroit Gasket to enable Star to be paid a greater percentage of its debt than other creditors of the same class (unsecured creditors). It was not only the intent of Steel Structures’ to use the consideration obtained for that purpose, it was the sole purpose underlying the entire transaction. The reason for executing the deed of trust was “to get Star paid and get the lien taken off” Detroit Gasket’s property. (Matthews' testimony February 17, 1971.) The purpose to which the proceeds of a loan are immediately applied is in itself evidence of the intent with which it was sought. Matter of Anderson, 252 F. 272 (DCRI 1918).
“When bankruptcy or liquidation is contemplated, an intent to make even a fractional payment to a particular creditor will ordinarily satisfy this requirement of Sec. 67d(3). The reason is that in the ensuing bankruptcy or other distribution on liquidation the fractional payment will enable the creditor receiving it to have an advantage pro tanto over creditors whose claims were not so reduced.” Collier, 14th Ed., Vol. 4, sec. 67.38, p. 553, footnote 27.
Transferees’ Knowledge
Both Star and Detroit Gasket knew at the time of the transaction that Steel Structures intended to pay Star the proceeds of the advance. This fact cannot be disputed.
In December, 1969, Star’s credit manager came to Steel Structures’ offices and went over the Detroit Gasket account. When he saw that Steel Structures was unable to pay Star, the lien action against Detroit Gasket was commenced. After the lien notice was filed, Steel Structures’ president, Mr. Matthews, promised Detroit Gasket he would “make an effort to pay [Star] which we were unable to do.” Thereafter, Detroit Gasket made several inquiries of Steel Structures and was informed that they were still trying to make arrangements to pay. Detroit Gasket never threatened legal action but advised Steel Structures they were turning the matter over to their attorneys. (Mr. Matthews’ testimony February 17, 1971.)
The trustee has carried the burden of proof required to avoid the transfer under Sec. 67d(3) of the Bankruptcy Act.
Detroit Gasket insists that, even if the court finds that all six elements of proof required to avoid the transfer under Sec. 67d(3) are satisfied, the mortgage is still valid against the trustee because of the exception provided in Sec. 67d(6) of the Bankruptcy Act — a transfer fraudulent under subdivision (d) “shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value.” Collier, 14th Ed., Vol. 4, Sec. 67.41, p. 588.
Detroit Gasket overlooks the statement in Collier that, “Knowledge of the transferor’s insolvency may, in conjunction with other factors, disable the transferee from asserting good faith. Indeed, the presence of any circumstance placing the transferee on inquiry as to the financial condition of the transferor may be a contributing factor in depriving the former of any claim to good faith unless investigation actually disclosed no reason to suspect financial embarassment.” (emphasis added) Collier, 14th Ed., Vol. 4, Sec. 67.41, pp. 588-590.
“Notice of facts which would incite a man of ordinary prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would disclose.” Coder v. McPherson, 152 F. 951 (CA 8th 1907). “No principle of law is better settled or more universally accepted.” Grandison v. National Bank of Commerce, 231 F. 800 (2d Cir. 1916), cert. denied 242 U.S. 644, 37 S.Ct. 213, 61 L.Ed. 542.
Both Star and Detroit Gasket on July 29, 1970, had knowledge of many circumstances which would place prudent business persons on inquiry as to Steel Structures’ financial condition. The debt to Star was months past due, in spite of the fact that Steel Structures had been fully paid for its work by Detroit Gasket. A lien had been filed against Detroit Gasket’s property and an attachment levied. Detroit Gasket’s advance to Steel Structures was not in the ordinary course of business. Detroit Gasket is a manufacturing company, not a lending institution. Detroit Gasket’s advance to Steel Structures was for one purpose only — to pay Star’s indebtedness so that its property could be released from Star’s lien and attachment.
Solvent business concerns do not permit materialmen’s liens to exist for several months. It is a “red flag” of warning that cannot be ignored by those who deal with builders and contractors. Detroit Gasket and Star are sophisticated commercial enterprises and are not unaware of realities. Nor are their attorneys. Although Detroit Gasket insists that Star’s lien against its property was not valid, it elected not to defend but to advance money to the bankrupt to pay Star and thereby obtain a release of its property from Star’s asserted lien. Detroit Gasket thereby assumed whatever risks were involved in this unusual transaction, including the present attack on the transfer by the trustee in bankruptcy.
Voidability under Sec. 67d(3) is not restricted to instances where the transfer meets all the terms of a Sec. 60 preference. See Remington, Vol. 4, Sec. 1647, p. 153.
To avoid a transfer under Sec. 67d(3), the burden of proof is initially upon the trustee, but, if a prima facie case is made out and the transferee claims to have been a bona fide purchaser or lienor, protected as such by the statute, he has the burden of so showing. Remington, Sec. 1641, Vol. 4, p. 118. Neither Detroit Gasket nor Star introduced any proof.
Detroit Gasket also insists that the facts in the present case differ substantially from those in Dean v. Davis, supra, as Steel Structures was not motivated by a fear of criminal prosecution to get a particular creditor paid before it went under. I am not sure this statement is correct. This court must take judicial notice of Tennessee statutes.
Tennessee Code Annotated 64-1140 enacts that any contractor, subcontractor, or other person who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor performed on, or materials furnished by his order for, this specific improvement, while any amount for which he may be or become liable for such labor or materials remain unpaid, shall be guilty of a felony and punished accordingly. The gist of this offense is that a person, exercising a contractual relation, cannot obtain funds for a specific purpose and then divert those funds to his own use, leaving outstanding obligations for which a creditor would have a lien upon the owner’s property. See State v. Overton, 193 Tenn. 171, 245 S.W.2d 188 (1951). This statute appears to be used infrequently; however, there can toe no doubt but that those engaged in the contracting business are fully aware of its existence and implications.
V
Voidable preference under Sec. 60 of the Bankruptcy Act.
The trustee also alleges the transfers are void as preferences under Sec. 60 of the Act. That section enacts:
“a(l). A preference is a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class, “b. Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent.”
Thus, this section requires seven elements of proof before a transfer can be set aside:
(1) That the bankrupt made or suffered a transfer of his property;
(2) That the transfer was to or for the benefit of a creditor;
(3) That the transfer was for or on account of an antecedent debt;
(4) That the transfer was made while the bankrupt was insolvent;
(5) That the transfer was made within four months of bankruptcy;
(6) That the effect of the transfer was to enable the creditor to obtain a greater percentage of his debt than some other creditor of the same class;
(7) That the creditor receiving the preference had reasonable cause to believe that the debtor was insolvent. Star insists that the payment to Steel
Structures from the proceeds of the advance from Detroit Gasket is not a preference under Sec. 60 of the Bankruptcy Act, citing Collier, 14th Ed., Vol. 3, Sec. 60.26, p. 882, as follows:
“[W]here a third person makes a loan to a bankrupt debtor specifically to enable him to satisfy the claim of a designated creditor, the proceeds never become part of the bankrupt’s assets, and therefore no preference is created. The rule is the same regardless of whether the proceeds of the loan are transferred directly by the lender to the creditor or are paid to the debtor with the understanding that they will be paid to the creditor in satisfaction of his claim, so long as such proceeds are clearly ‘earmarked.’ ”
Star also cites Grubb v. General Contract Purchase Corporation, 94 F.2d 70 (CA 2d Cir. 1938); In re Henry C. Reusch & Co., Inc., 44 F.Supp. 677 (DC NJ 1942); and Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (CA 10th Cir. 1955).
Star is correct when there is no diminution of the bankrupt’s assets. However, when there is a diminution of the bankrupt’s estate, the transfer can be avoided. Collier, 14th Ed., Vol. 3, Sec. 26, p. 884, states—
“Of course, the fact that an alleged preferential payment was made by a third party instead of by the bankrupt will not validate the transaction where the bankrupt’s assets were diminished thereby.” (Emphasis added.)
From time immemorial, courts of law have refused to sanction acts done by indirection, which, if performed directly, would be barred by law. Courts of Bankruptcy have from the beginning placed emphasis upon the purpose and effect of a given transaction irrespective of the manner in which it was accomplished — that is, regardless of whether such transfer was a direct or indirect transaction. The principle has been firmly established that a transfer which indirectly evades the provisions of the Bankruptcy Act by effecting an undue preference to a creditor is voidable. Collier, Sec. 60.08, p. 793, cases cited under footnote 1.
In the case of National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 56 L.Ed. 1042, the court said—
“To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it.. It is not the mere form or method of the transaction that the act condemns, but the appropriation by the insolvent debtor of a portion of his property to the payment of a creditor’s claim, so that thereby the estate is depleted and the creditor obtains an advantage over other creditors.”
See also Grandison v. National Bank of Commerce, 220 F. 981 (DCNY 1915), aff’d 231 F. 800 (CA2d 1916), cert. denied 242 U.S. 644, 37 S.Ct. 213, 61 L.Ed. 542. In this case an endorser on overdue promissory notes held by the defendant received an assignment of accounts from the bankrupt to secure him as such endorser. The court held:
“To constitute a preference it was not necessary that the assignment of the accounts receivable should be made directly to the bank. It was enough that the transaction which resulted in the indorsement of the renewal notes and the subsequent collection of the accounts receivable
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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sc_issuearea
|
H
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
McALLISTER v. UNITED STATES.
No. 23.
Argued October 19, 1954.
Decided November 8, 1954.
Jacob Rassner argued the cause for petitioner. With him on the brief was Samuel Goldstein.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger, Samuel D. Slade and Morton Hollander.
Mr. Justice Minton
delivered the opinion of the Court.
The petitioner brought suit against the United States under the Suits in Admiralty Act, 46 U. S. C. § 741 et seq., to recover damages for negligence in creating conditions aboard ship whereby he contracted polio and for negligence in the treatment thereof. The District Court, sitting without a jury, made findings of fact and stated its conclusions of law thereon (Admiralty Rules, No. 46%) in which it found the respondent not guilty of negligence in the treatment of the petitioner after he became ill, but found it guilty of negligence in permitting conditions to exist on board ship which were conducive to the transmission of polio whereby the petitioner was unduly exposed and thereby contracted the disease. Judgment for damages was entered against respondent, and on appeal the Court of Appeals reversed on the ground that no proximate cause was shown between the negligence and the contraction of polio. 207 F. 2d 952. We granted certiorari. 347 U. S. 932.
The first question presented is whether the Court of Appeals in reviewing the District Court’s findings applied proper standards. In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52 (a) of the Federal Rules of Civil Procedure. Boston Ins. Co. v. Dehydrating Process Co., 204 F. 2d 441, 444 (C. A. 1st Cir.); C. J. Dick Towing Co. v. The Leo, 202 F. 2d 850, 854 (C. A. 5th Cir.); Union Carbide & Carbon Corp. v. United States, 200 F. 2d 908, 910 (C. A. 2d Cir.); Koehler v. United States, 187 F. 2d 933, 936 (C. A. 7th Cir.); Walter G. Hougland, Inc. v. Muscovalley, 184 F. 2d 530, 531 (C. A. 6th Cir.), cert. denied, 340 U. S. 935; Petterson Lighterage & Towing Corp. v. New York Central R. Co., 126 F. 2d 992, 994-995 (C. A. 2d Cir.). 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. Oregon Medical Society, 343 U. S. 326, 339; United States v. United States Gypsum Co., 333 U. S. 364, 395. We do not find that the Court of Appeals departed from this standard, although we do disagree with the result reached under the application of the standard. In relation to the District Court’s findings we stand in review-in the same position as the Court of Appeals. The question, therefore, is whether the findings of the District Court are clearly erroneous.
The petitioner was second assistant engineer on board the S. S. Edward B. Haines which was in Chinese waters from September 13, 1945, to December 3, 1945. During this time the master of the ship was informed that polio and other contagious diseases were prevalent in Shanghai, and a bulletin was posted on ship warning the crew thereof and directing them while ashore to exercise care in eating and drinking and to avoid association with the inhabitants ashore. So concerned was the master about this condition that he mustered the members of the crew on several occasions and warned them to the same effect. The District Court found that the petitioner obeyed these warnings, and there was no evidence in the record to the contrary. While the ship was in port at Shanghai, November 11, 1945, the record does not show that the petitioner went ashore. The last time he was ashore was November 1. On November 11, a number of Chinese stevedores came aboard to do some work, and there were also taken aboard at that time forty or fifty Chinese soldiers and fifty truck drivers and mechanics to be transported to Tsingtao. These soldiers, truck drivers and mechanics, fresh from Shanghai, the area infested by polio, were permitted wide use of the ship, including toilet facilities and the only drinking fountain, which was located on deck. To supplement the toilet facilities an open wooden trough was laid along the deck and discharged over the side of the ship. A hose was provided for flushing the trough, and on several occasions the petitioner had to go on deck to turn the water on to flush it. There was expert testimony by doctors that polio derives from a virus usually spread by people who are carriers of the disease to healthy persons who are susceptible. The virus is carried by human beings who have the organism in their intestinal tract or in their nose and throat. It enters the respiratory or the intestinal tract of the susceptible person and is carried to the central nervous system where the disease produces injury.
The petitioner first reported his symptoms on November 24, 1945. The usual period of incubation for the virus causing polio is believed to be about two weeks, with a maximum of two and one-half weeks. There was expert testimony that the producing cause of polio in the petitioner was contact with the Chinese stevedores, soldiers, truck drivers and mechanics who came aboard the ship. According to the expert testimony, polio usually does not occur unless there have been previous cases of the disease or contact with persons who have it. The petitioner had an uneventful trip of months before reaching the Orient with individuals who had no polio; then suddenly he is thrown in contact with Chinese from the Shanghai area where polio is prevalent, and thereafter, within the normal period of incubation, he comes down with the disease.
On evidence showing these facts, including the opinion of the experts, we think there was substantial evidence from which the District Court could and did find that respondent was negligent in permitting these Chinese, from the infested area of Shanghai, to have the run of the ship and use of its facilities, and in furnishing the crude and exposed latrine provided on the deck of the ship, by reason whereof the petitioner contracted polio.
Of course no one can say with certainty that the Chinese were the carriers of the polio virus and that they communicated it to the petitioner. But upon balance of the probabilities it seems a reasonable inference for the District Court to make from the facts proved, supported as they were by the best judgment medical experts have upon the subject today, that petitioner was contaminated by the Chinese who came aboard the ship November 11, 1945, at Shanghai. Certainly we cannot say on review that a judgment based upon such evidence is clearly erroneous. Myers v. Reading Co., 331 U. S. 477, 485-486; Tennant v. Peoria & P. U. R. Co., 321 U. S. 29. We think it was an allowable judgment of the District Court, and the judgment of the Court of Appeals is
Reversed.
Mr. Justice Reed would affirm on the grounds stated by the Court of Appeals.
Mr. Justice Frankfurter.
The petition on the basis of which a writ of certiorari was sought in this case presented two questions of law claimed to have general importance. The course of the argument at the bar left no doubt that these were not the questions which were involved in the decision of the Court of Appeals under review. Neither is the question which this Court is now deciding. Both counsel and this Court have viewed the case as no more than an ordinary action for negligence, giving rise, as is frequently the case, to conflict in evaluation of the evidence. In short, the Court of Appeals read the evidence one way and this Court another. If there is any class of cases which plainly falls outside the professed considerations by which this Court exercises its discretionary jurisdiction, it is cases involving only interpretation of facts bearing on the issue of causation or negligence. The standards of judgment in this type of litigation are well settled. The significance of facts becomes the bone of contention. And the facts stir differences that derive from the very elusiveness of the meaning of the myriad unique sets of circumstances in negligence cases. One’s deep sympathy is of course aroused by a victim of the hazards of negligence litigation in situations like the one before us. But the remedy for an obsolete and uncivilized system of compensation for loss of life or limb of crews on ships and trains is not intermittent disregard of the considerations which led Congress to entrust this Court with the discretion of certiorari jurisdiction. The remedy is an adequate and effective system of workmen’s compensation.
The present case is one of those instances when a full appreciation before the writ was granted of what the argument developed should have led to a denial of the writ. If this Court is to entertain a negligence case solely because we stand in review in the same position as the Court of Appeals with relation to the District Court and disagree with the result which the Court of Appeals reached in the application of the right standards, the opportunity that is afforded in this case for a review of the Court of Appeals is an opportunity that should generally be afforded when the Court of Appeals reverses a District Court. (Incidentally, this Court is not reviewing the District Court. It reviews the Court of Appeals’ review of the District Court.)
Again and again and again has it been authoritatively announced that controversies such as this are not for this Court. Nor does it follow that because the case in fact was brought here and has been argued, the merits should be decided. The short answer is that to entertain this kind of a case inevitably will encourage petitions for cer-tiorari in other like cases tendering an issue of more general importance which close examination proves wanting. Thus will again begin demands on the Court which it wisely cannot discharge and for which legislative relief had to come, or a feeling of discrimination will be engendered in taking some cases that ought not to be taken and rejecting others.
These controlling considerations were thus put by Mr. Chief Justice Taft on behalf of the entire Court:
“If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal. The present case certainly comes under neither head.” Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387, 393.
With due regard to the Court’s jurisdiction on writ of certiorari (Revised Rules of the Supreme Court, No. 19) and to the effective adjudication of those cases, inevitably abundant, for which the Court sits, the Court has again and again dismissed the writ as improviden'tly granted after a preliminary and necessarily tentative consideration of the petition. United States v. Rimer, 220 U. S. 547; Furness, Withy & Co. v. Yang-Tsze Ins. Assn., 242 U. S. 430; Tyrrell v. District of Columbia, 243 U. S. 1; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387; Southern Power Co. v. North Carolina Pub. Serv. Co., 263 U. S. 508; Keller v. Adams-Campbell Co., 264 U. S. 314; Wisconsin Electric Co. v. Dumore Co., 282 U. S. 813; Sanchez v. Borras, 283 U. S. 798; Franklin-American Trust Co. v. St. Louis Union Trust Co., 286 U. S. 533; Moor v. Texas & N. O. R. Co., 297 U. S. 101; Texas & New Orleans R. Co. v. Neill, 302 U. S. 645; Goodman v. United States, 305 U. S. 578; Goins v. United States, 306 U. S. 622; McCullough v. Kammerer Corp., 323 U. S. 327; McCarthy v. Bruner, 323 U. S. 673.
I would dismiss the writ as improvidently granted.
See Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 503: “This is not the place to review a conflict of evidence nor to reverse a Court of Appeals because were we in its place we would find the record tilting one way rather than the other, though fair-minded judges could find it tilting either way.”
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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sc_issuearea
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
PRESSLER, MEMBER, U. S. HOUSE OF REPRESENTATIVES v. BLUMENTHAL, SECRETARY OF THE TREASURY, et al.
No. 76-1005.
Decided May 16, 1977
Per Curiam.
The motion of We the People for leave to file a brief, as amicus curiae, is granted. The motion of James W. Jeffords, et al., for leave to file a brief, as amici curiae, is granted.
Appellant challenges the operation of certain provisions of the Postal Revenue and Federal Salary Act of 1967, 2 U. S. C. §§ 351-361, and of the 1975 Executive Salary Cost-of-Living Adjustment Act, 2 U. S. C. § 31 (1970 ed., Supp. V), relating to increases in salaries paid members of Congress. He asserts that the operation of these Acts violates Art. I, § 1, and § 6, cl. 1 (the Ascertainment Clause), of the Constitution.
On April 4, 1977, Congress passed an amendment to the Postal Revenue and Federal Salary Act. On April 12, the President signed that amendment into law. Pub. L. 95-19, 91 Stat. 45.
It appearing that the amendment to the Postal Revenue and Federal Salary Act will alter materially the scope and perhaps the nature of appellant's suit, the judgment of the District Court is vacated, and the case is remanded to that court for further consideration in the light of the new legislation.
It is so ordered.
Me. Justice Stevens would affirm the judgment dismissing the complaint.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_respond1_5_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
WESTERN UNION TELEGRAPH CO. v. WILCOX et al.
No. 10555.
Circuit Court of Appeals, Eighth Circuit.
Aug. 7, 1936.
Ralph T. Finley and Lon O. Hocker, both of St. Louis, Mo. (James C. Jones and Frank H. Sullivan, both of St. Louis, Mo., Francis R. Stark and Robert C. Barnett, both of New York City, and Jones, Hocker, Gladney & Jones and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant.
James L. HornBostel, of Jefferson City,. Mo. (Roy McKittrick, of Jefferson City, Mo., on the brief), for appellees.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
The Western Union Telegraph Company brought this suit in equity against members and the secretary of the Missouri state tax commission and the state auditor to enjoin the certification to the various counties in the state for taxation purposes of an alleged excessive and discriminatory assessment of the company’s property as of June 1, 1932. Injunction was denied after trial of the issues in the District Court, and the company has appealed. Diversity of citizenship and jurisdictional amount in controversy were shown; also want of adequate remedy at law; and no question is presented here as to the form of the suit or the sufficiency of the petition.
It appears that under the laws of Missouri the state tax commission is charged with the duty of originally assessing for taxation the property of telegraph companies such as the plaintiff on the basis of its true value in money in the same proportion as other property is assessed; said assessment being subject to equalization by the state board of equalization. The telegraph company pleaded that, although the true value of its property within the state did not exceed the sum of $4,300,000, the tax commission, at first tentatively and then, after a hearing and the introduction of evidence, finally assessed its property in Missouri in the sum of $6,556,192, which assessment the state board of equalization, after hearing, refused to reduce. Plaintiff alleged further: “That in valuing the plaintiff’s property and equalizing said assessment, said Tax Commission and Board of Equalization, under the law and in accordance with the settled practice and custom of said Commission and Board, were required to determine the value of plaintiff’s property in the State of Missouri by taking such percentage of the total value of the plaintiff’s property within and without the State of Missouri as the total mileage of the plaintiff’s poles and wires in the State of Missouri bore to the total mileage of the plaintiff’s poles and wires within and without the State of Missouri”; that, “Within the time required by the laws of the State of Missouri, the plaintiff filed * * * a statement, duly subscribed and sworn to, * * * which statement set out the kind of property composing plaintiff’s telegraph system in the State of Missouri * * * and also the number of miles of poles and miles of iron and copper wire in said State * * * ”; “that from the statements filed by the plaintiff, aforesaid, and evidence offered before said Tax Commission, said Commission had before it the facts showing the total property owned by the plaintiff within and without the State of Missouri, including the total mileage of poles and wires within and without the State of Missouri, and the total cost thereof, the average cost per mile of various kinds of property, such cost less depreciation, together with earnings of the plaintiff’s property prior to such assessment, as well as the market value of its outstanding stock and bonds, over a reasonable period of years prior to such assessment”; “that in making and approving the said assessment of $6,556,192.00, the said (Tax) Commission and- Board of Equalization deliberately, intentionally and arbitrarily grossly overassessed the plaintiff’s said property to the extent that the said assessed value was fixed in excess of $4,300,000.00, by deliberately, intentionally and arbitrarily basing said assessed value upon a cost basis alone, in total disregard of the earning power of plaintiff’s said property and the true value in money of its said property; that the valuation of plaintiff’s said property fixed by said Commission and approved by said Board of Equalization is not supported in any manner by any representative method or basis of valuation; that to arrive at any value of said property in excess of $4,300,000.00, said State Tax Commission could only have gróssly overassessed the plaintiff’s property in Missouri or considered valuations of plaintiff’s property outside of the State of Missouri, not legally forming a part of plaintiff’s property within said State; that in so valuing the plaintiff’s property, and in basing its valuation upon cost alone, and disregarding the earning power and the market value or true value in money of plaintiff’s said property, the said Commission and Board of Equalization proceeded upon a fundamentally wrong theory of valuation, for all of which said reasons the amount of such valuation in excess of $4,300,000.00 constitutes a fraud against this plaintiff, and deprives and will deprive the plaintiff of its property without due process of law,” “and denies to the plaintiff the equal protection of the laws.”
The plaintiff further alleged “that while intentionally, deliberately and arbitrarily assessing the plaintiff’s property, as aforesaid, as of June 1, 1932, for the taxes for the year 1933, grossly in excess of its true value, as aforesaid, and upon such fundamentally erroneous basis of valuation, the said State Tax Commission and State Board of Equalization deliberately, intentionally and arbitrarily fixed, approved and equalized the assessment of all other property in the State of Missouri, for the same year, in the same class for the purpose of taxation, at not to exceed eighty per cent, of its true value in money; that such action by said taxing authorities was and is a discrimination against, and a fraud upon, the plaintiff * * * ” And more particularly it was alleged that real estate and personal property were underassessed at 65 per cent, of true value and that flat reductions were made in the assessment of real and personal property, especially upon flat rates of value for livestock on account of the financial depression since 1929, and that all such underassessment has been so open and notorious that the same has developed into a well-established practice and custom of underassessment.
These claims were put in issue by the answer of the defendants, and on the trial of the case-a member of the state tax commission, Mr. A. J. Murphy, who had participated in making the assessment complained of, testified as a witness for the defendants, and narrated in detail how the assessment was arrived at and made by the board. The contentions argued in this court can be more readily introduced by a consideration of Mr. Murphy’s account of the making of the assessment.
Mr. Murphy said that the sworn return of their properties to the tax commission was supposed to be filed by the public utilities before the end of the year (in this case 1932), and the board passes on it in the spring of the following year or sometime in the summer. In its return for the tax year in question the company omitted to report certain properties amounting to around $800,000 which it had always included in the reports in previous years,' and it also claimed greatly reduced values, so that upon the face of its return its assessment would be much less than it had been. Accordingly, a study was made by Mr. Murphy, not only of the returns made by the company to the tax authorities in Missouri, but of its reports to the Interstate Commerce Commission, the. Missouri Public Service Commission, and to stockholders. Mr. Murphy prepared tables showing what the assessments of the Western Union property had been in the state of Missouri over a number of years. The assessments from 1921 to 1931 were as follows:
1921 $5,470,540.00
1922 5.724.447.00
1923 5.499.156.00
1924 5.865.121.00
1925 5.851.999.00
1926 5.840.633.00
1927 5.853.930.00
1928 5.918.248.00
1929 5.893.139.00
1930 5.955.751.00
1931 5.955.653.00
It appeared that in a period between 1926 and 1931 the property of the company, as assessed in Missouri, had only been increased $115,000, whereas the reports of the company filed with the Public Service Commission of Missouri showed that in the five-year period from 3928 to 1932 the increase of the company’s book value of plant and equipment was $69,161,168. There was nothing in the reports made by the company to the taxing authorities of Missouri from year to year showing increased valuations except that some increase of mileage of wires and poles was indicated. Examination of the returns made by the telegraph company to the taxing authorities in Missouri disclosed that the company did not report the number of miles of wire owned or operated by it in the state of Missouri or in the United States, so that, although Mr. Murphy deemed the pole and wire mileage comparison proper for state allocation purposes, no such allocation could be made from the returns made to the Missouri taxing authorities. Mr. Murphy said: “We were trying to arrive at a correct value of the properties using * * * whatever information we could get. * * * We had copies of their annual reports to the stockholders and in reading these reports we discovered that in this ten years in which we had not been increasing their assessment in Missouri they say their property has increased' 83 per cent. They did not say what kind of property hut we had information enough to know it was' similar property to that in Missouri, poles and wires and telegraphic instruments.” The company’s reports showed that “the new construction for the six years (1928-1932) * * * added to plant and equipment were: Poles $26,802,109.00; wires, $13,-548,031.00; aerial cable, $2,751,825.00; underground cable, $4,486,269.00; conduit $3,948,976.00; pneumatic tubes $1,677,804.-00; telegraphic equipment, $21,340,090.00; total additions to assets $113,232,321.00.” “We were trying to make up our minds whether this property (the telegraph company’s) should be worth more, * * * we examined their annual report and find that the company’s annual report for the fiscal year 1931 says ‘the company’s property has been expanded and intensively developed to keep pace with the growing demand for better and faster telegraph service. Additions and betterments to the plant during the twenty years ending 1931 aggregated $193,335,000.00.’” It also appeared in the reports to stockholders for 1931 that the taxes of the company throughout the United States generally were double those of ten years ago, whereas the property account had increased only 83 per cent.
With this and other information in hand, Mr. Murphy prepared tables of computations of the company’s property values and pole and wire mileages to arrive at a valuation for the assessment. He testified that in reaching the valuation upon which the assessment was made the commission did not'adopt the reproduction cost new less depreciation basis nor any other one theory. In response to the question propounded by the court to Mr. Murphy: “How did you arrive at your assessment?” Mr. Murphy said: “We arrived at that originally by the first method that I talked to you about, the reproduction cost new, comparing that with the earning statement at that time as we knew it and the sale of their securities as we knew it at that time. That was a fair average of the three methods there. The average on plans 1, 4, and 5, that is the reproduction cost new, total net income and sale of securities, which we think are the fa-ir methods. The average of those three is $6,897,350.00.” (The assessment being $6,556,192.)
Although Mr. Murphy did not testify that he was an accountant, his testimony reflects that he was competent to and did make comprehensive studies of the company’s properties from the sources referred to by him.
On the trial Mr. Murphy submitted tables which contained the figures in detail to reflect computations made according to each method employed to arrive at the value of the company’s property in Missouri. The tables so presented on the trial were not those originally compiled by the commission prior to the assessment. Mr. Murphy says: “We made tables in the light of more recent information which we” are submitting. “After this suit came up we had to make further investigation, that is the company did. The company revised their estimates. Every time they revised their figures we would have to revise ours; we would get some additional information.” The tables of computations, submitted by Mr. Murphy and received in evidence, show the valuation of the plaintiff’s property of June 1, 1932, by five different methods, summarized as follows:
(1) Reproduction Cost New Less 15% depreciation Plus 8% Going Value $7,-997,761 — $1,999,664 equals $6,792,007 plus $543,360 equals $7,335,367
(2) Prorated Book or Cast Value $9,930,871 —15% Dep. $1,489,620 equals $8,441,-241 plus 8% equals 9,116,540
(3) Plant Capitalizing Earnings over a 5-year term at 6% return equals 5,917,607
(4) Capitalizing Total Net Income at 7% 1928-1929-1930 and 6% 1931-1932 6,473,571
(5) Sale of Securities equals 6,883,113
Average of all 5 valuations $7,145,239
Assessment 6,555,690
Average of 1-4-5 6,897,350
Valuation on Cost of property*! less Depreciation plus going value * which is valuation used in the ^Equals 9,116,540 assessment of land, Town lota, and most property J
Assessment $6,555,690
72%
Voluminous testimony offered for the company was to the effect that the computations as made for the Board upon each of the several identified methods of estimating values were erroneous, that the conclusions arrived at were wrong, and that the true value of the company’s property in Missouri was only a fraction of the assessment.
On the issue of discrimination Mr. Murphy testified that the practice of the tax commission was to “make a map showing each county in the state and we put down in red ink on this map (over each county) the last previous assessment confirmed by the State Board of Equalization which, in this case is 1932, which was the assessment for 1931. Then we put a second figure in black ink, the average assessment per acre of farm land returned from each county. * * * After this map has been completed and other assessments arrived at rby the County Assessor and certified to by the Tax Commission, the Tax Commission reviews these assessments, compares the assessments with the previous year and gets these maps for probably two or three years back and sees what the general tendency in each county has been, whether it is up or down. We compare the assessment in each county (with the assessment) on lands of the surrounding counties and if we find a discrepancy or if our other information leads us to believe that any of the figures returned by the assessors are too high or too low, we increase it or decrease it and make this third set of figures which is the valuation arrived at by the Tax Commission. Then, wp certify these up to the State Board of Equalization who make an additional finding and their finding is the fourth figure on these maps which is the final assessment for the state.” In answer to the question: “Mr. Murphy, I will ask if the Tax Commission intentionally assessed the property of the plaintiff at more than its true value and other.property in the state at less than 100% of its true value in money?” Mr. Murphy answered: “No.”
The plaintiff called some fifty-odd witnesses who gave testimony tending to show that real and personal property in the state was assessed below its true value and that there had been flat reductions in the assessments upon certain classes of personal property, notably, livestock and bank stock. Many witnesses called for the defendants gave testimony tending to show that property values in Missouri had gone down much faster than taxing officers had reduced assessments, so that in the tax year in question assessed values tended to approximate closely to real values in money.
Neither of the parties made any request to the court to find specially upon any of the very numerous fact disputes developed in the large volume of testimony, and the court accordingly declared briefly and generally that it could not be found as a fact that the fair value of the plaintiff’s property as of June 1, 1932, was less than the amount at which it was assessed; nor that there was any intentional, deliberate, or arbitrary overassessment of plaintiff’s property; nor that the assessment of other property in Missouri “was not at the true value in money of that property”; and the court found “that there was no intentional deliberate nor arbitrary discrimination against the plaintiff by assessing its property at a different or higher percentage of its true value in money than the percentage of value at which other property in Missouri was assessed in 1932.” The court, accordingly, dismissed the bill.
On this appeal the contentions of the appellant relate, first, to its claim that its property was overassessed, and, second, to the claim of discrimination on account of the alleged failure to equalize the plaintiff’s assessment on the same basis of valuation as the great mass of other property in the state.
Overassessment.
As to the overassessment of the property, it has been argued for appellant that the assessment here assailed was not arrived at by the tax commission upon consideration of computations made in accordance with the several theories of valuation testified to by Mr. Murphy, but that it was, in fact, made arbitrarily by wrongfully including certain locally assessable properties and other property outside the state at grossly excessive prices and then resorting to computations merely to check or justify what had been wrongfully done. It is claimed that a so-called “work sheet” produced from the files of the commission (Exhibit, 17-A) and the testimony concerning the same would so indicate. The exhibit referred to includes an item “Other Equipment, $1,498,764,” and it is argued that the property referred to in this item was in part property that was outside of the state and that another part, amounting to at least $1,000,000, was inside of the state but locally assessable and not subject to assessment by the tax commission. On stridy of the testimony relative to this controversy, we have concluded that it was not established that the identified work sheet was intended to or did set forth the elements upon which the assessment was based by the tax commission. We have concluded that we should give credence to Mr. Murphy’s statement that the assessment was reached originally by the commission upon consideration of the several methods of computation and the combination thereof as described by him.
The appellant has also presented that the commission followed fundamentally erroneous methods to compute the value of plaintiff’s property as argued in the following contentions, which we will number, epitomize, and discuss:
1. That in its valuation upon the reproduction cost new basis the commission wrongfully included an arbitrary item of 8 per cent, for franchise or going value, amounting to $300,000.
2. That the commission included personal property to the extent of at least $1,-000,000, which was assessable by the assessors in the local subdivisions of the state and not by the state tax commission.
3. That the commission based its valuation upon book values without adequate allowance for depreciation and without due consideration of actual values, wrongfully taking (in part at least) an average value over a period of years.
4. That in its valuation by capitalization of earnings, (a) a five-year average was wrongfully taken; (b) expenses of rent on lease lines were not deducted; (c) the commission capitalized earnings on the basis of 6 per cent, instead of 7 or 8 per cent.
5. In its valuation on the sale of’ securities basis of computation the commission (a) wrongfully used a five-year average of sales values; (b) it wrongfully added stocks and bonds which plaintiff had purchased amounting to about $1,765,550; noninterest-bearing liabilities, about $13,-000,000; premiums on stocks, about $1,-163,350; and bonds owned by plaintiff and deposited as collateral for loans, $3,143,000.
1. Going Value. In estimating the value of the company’s property upon the basis of reproduction cost new less depreciation, the Board, after, deducting 15 per cent, depreciation from the' gross valuation, added to the depreciated figure an amount equal to 8 per cent, thereof as going value. Later, when the tables showing the five different methods of estimating values had been compiled, the' same addition of 8 per cent, upon the depreciated valuation was made by Mr. Murphy in reaching his valuation by his so-called prorated book or cost value. Mr. Murphy said: “In some of these computations there is an 8 per cent, going value as a part of the real value of the property. It was added, however, after taking off depreciation.” “The theory of going value is this: that in a property of this kind, spread out over the United States, that it would take at least five years to build, that you would incur three or four years taxes, interest, and everything on your securities before you get to earning a cent. You are attempting to establish the value of it at the present time. * * * So I think that is a proper element to be taxed. We assess similar values on every utility in the state. * * * Always have.”
The reasons upon which it has been found necessary in estimating the value of properties like the plaintiff’s to make an addition on account of going value have been explained and upheld by the courts in numerous cases (see Los Angeles Gas & Electric Corp. v. Railroad Comm., 289 U.S. 287, 313-319, 53 S.Ct. 637, 77 L.Ed. 1180); and we do not find fundamental error, illegality, or fraud in the addition made under the item “Going Value.” Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 139, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 109-111, 55 S.Ct. 55, 79 L.Ed. 222; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 52 S.Ct. 48, 76 L.Ed. 146; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245, 52 S.Ct. 133, 76 L.Ed. 265; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L. R. 979.
2. Property Claimed to be Locally Assessable. Two assignments of error and considerable portions of appellant’s brief and reply brief relate to its second contention above stated to the effect that certain property included by the Commission was locally assessable property. There is no competent evidence to establish that the property referred to in this contention ever was actually assessed by local assessors in the state or that there was a double assessment thereof by local and state assessing officers. Mr. Meigs, testifying for the telegraph company, says that “he had been told that the elements of value enumerated” had been locally assessed and that “he had been told that the reason for not including them in the returns of the company for the year in controversy was that he had been so told by Mr. Whitney, now deceased, who was tax attorney.” Whether any of the company’s property was in fact being doubly assessed, once by local assessors in the counties and again by the state tax commission, was a matter very easy of ascertainment and demonstration by the company. The Missouri statute (section 9764, R.S.Mo.1929 [Mo.St.Ann. § 9764, p. 7880]) requires the company to make a sworn return to local assessors of any of its property which is locally assessable, and no such local returns are shown. Mr. Murphy testified: “I want to say further that there is a blank sent to them (the telegraph company) to make a return of their property in each county in the state and each taxing subdivision. They reported nothing on those blanks, except the number of miles of wire and number of miles of poles. They did not give us a list of any other property in those counties or taxing subdivisions.”
Neither did the company plead that the tax commission had committed the wrong now complained of. Its pleading was, as stated, that the tax commission had arrived at its excessive assessment by other means specifically set out, not including double assessment by local officers and by state officers. The pleading referred to is the amended petition which the plaintiff was permitted to file after all of the testimony had been taken on the trial. Nor does the record disclose that this contention now seriously urged upon us was presented to the trial court. Undoubtedly the great bulk of locally assessable property belonging to the telegraph company in Missouri is in St. Louis, where it has valuable land and buildings and equipment. Mr. Murphy was very positive that those were not included in his calculations. He testified: “In making these computations I did not count in the buildings and land. * * * I eliminated those * * * they were deducted as noil-distributable property. What we recognize as and what the law recognizes as non-distributable property is lands, buildings. * * We did not include these in this calculation.” lie said that he had only included “distributable property” in his calculations and that such property was properly assessable by the state tax commission rather than by the local assessors.
Because it has been urged upon us with earnestness we have given this contention of the appellant careful consideration, but we conclude that it should not be sustained.
3. Book Values — Depreciation. The appellant pleaded and has contended upon elaborate analyses of all relevant computations and figures that the commission gave undue weight to book' values. Its argument establishes that in the depression tax year in question book values were not an accurate criterion of true value, and undoubtedly, if it could be proven that the assessment was merely the book value in that year, that would present “a fundamentally wrong theory” of valuation.
At the opening of the trial counsel for the telegraph company said: “There is no dispute about the reconstruction costs new in any value of the physical plant. There is no contest but that that is correct.” There were disputes as to what items should be properly included. The company submitted four different reports of its reproduction cost new as of June, 1932. Report No. 1 was submitted in 1932 and withdrawn because of errors. Report No. 2 was submitted in January, 1933. Report No. 3 was submitted in depositions taken by appellant in New York after institution of this suit. Report No. 4 was submitted when the case was being tried before the court. The totals of the reports are as follows:
(The assessment, $6,556,192, is exactly 75 per cent, of the above figure $8,741,589.)
In all of its reports the company took a 30% per cent, depreciation and omitted going value. Reports Nos. 2 and 3 omitted items of property aggregating $885,808 claimed to be nonassessable by the company but which were included in report No. 4, and which the defendants claim should be included. They all also omit additional items amounting to $317,935 of property which had been reported as operative property of the company to the state authorities in previous years and which ought to be included according to the defendants. The estimate of reproduction new less depreciation at 15 per cent., with 8 per cent, going value, arrived at and shown on defendants’ table of computation, was $7,335,367. Recalculation of the defendants’ three methods of computation, 1, 4, and 5, produces the following result when weighted by attributing 20 per cent, to the first method and 40 per cent, to each of the others, as follows:
Value by Reproduction Cost new less depreciation.
Method No. 1 $7,335,367
20% of this value $1,467,073
Value by Capitalization of Net Income
Method No. 4 6,473,571
4C% of this value 2,589,428
Value by Sale of Securities
Method No. 5 6,883,113
40% of this value'2,753,245
Value by Combination of Methods $6,809,746
Appellees’ Assessment 6,555,690
Upon consideration of these tables and the data from which they were derived, we think it cannot be held that the assessment in question was wrongfully rested on book values or on reproduction cost new less depreciation plus going value. The strength as well as the weaknesses of the reproduction cost new less depreciation method of valuation have been recognized and explained by the courts. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041; Harris Trust & Sav. Bank v. Earl (C.C.A.8) 26 F.(2d) 617, 618; Chicago & N. W. Ry. Co. v. Eveland (C.C.A.8) 13 F.(2d) 442; Northern Pac. Ry. Co. v. Adams County (D.C.) 1 F.Supp. 163, 174, 175, 190, 191; See Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890. But it is an allowable method of estimating values, providing undue weight is not accorded to it. In the computations above set forth, a weight of only 20 per cent, has been accorded, and the resultant figures do not show a grossly excessive or arbitrary assessment was arrived at.
Neither do we sustain, the contention of the appellant that the only allowable depreciation was 30½ per cent. It would appear that, in view of the reports made by the company concerning the condition of the property, a less percentage could lawfully be taken for depreciation. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. We have not overlooked the testimony of Mr. John B. Campbell, called as a witness on rebuttal for the telegraph company, who testified, among other things, that, as a stockholder in the company, he had received no dividends for several years and that the company’s properties in Missouri were depreciated on the average of about 50 per cent. Other testimony reflects that dividends have been earned on the stock of the company continuously since 1870, and that the lesser rate of depreciation was not improper.
4. Capitalization of Earnings. Mr. Murphy prepared several tables reflecting an estimate of the value of the company’s property in Missouri according to the capitalization of earnings method, always taking averages over a five-year period, and appellant complains that it was fundamentally erroneous to use a five-year period in computing under this method. The evidence is that the earnings of the company were at the lowest point in the tax year in question, and it is argued that, as the only value in the company is its power to earn, when its earnings fell its value for taxing purposes should be reduced to the same low level. We think it was necessary for the commission to consider the reduced earnings, but we do not agree that, because the net earnings fell to little more than a third of what they were in 1928, the assessment should be reduced to the same extent. The long-maintained stability of the company cannot be disregarded, and it was not fundamentally erroneous to consider the five-year average in the computation. Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 149, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 105, 55 S.Ct. 55, 79 L.Ed. 222.
In making the computation in one of the tables presented by him, Mr. Murphy capitalized net income of the system at the rate of 7 per cent, per annum for the three years 1928, 1929, and 1930, estimating the values at $319,190,540 for 1928, $330,542,-858 for 1929, and $282,528,985 for 1930, but for the two years 1931 and 1932 the valuation on this basis fell to $242,418,566 and $126,566,800 respectively upon a 6 per cent, capitalization used for those years. The appellant complains that there was fundamental error (among other things) because in making the computations the item of “expenses on rent of leased lines” was not deducted. The experts for the company claimed large deductions by reason of the rent items.
On this issue Mr. Murphy testified that the reports of the company reflected that the company leased about 15 per cent, of the total wire which it used in the system and that it paid large sums for rent on the leased lines — about three and a half million dollars in the year 1928, for instance. It appears that the company had very little leased plant or equipment in Missouri, and Mr. Murphy testified that this fact had to be taken into consideration in making the computation of value upon the capitalization of earnings method used to make up the table on that basis. He pointed out that, unless the item of rent from leased property was treated the way he treated it, an unfair reduction of the value to be allocated to Missouri would result. He testified: “They pay three and one-half million dollars rent on that 15 per cent, of their wire,” and he said: “We take it (the item of rent) off after we determine the earnings of the entire wire mileage. Then you pay it, but it is not a proper deduction before you determine the earnings of your entire system.”
The real inquiry of the commission was as to the result of capitalizing the earnings per mile in order to attribute just value to the miles in Missouri. In Mr. Murphy’s view, Missouri was not concerned that some of the company’s wires in other states were leased and rental paid therefor. As the ultimate allocation to Missouri from all of the computations according to this method was upon the comparison of wire mileages, we are not convinced that the method of computation described and illustrated by Mr. Murphy was fundamentally erroneous in the particular complained of.
Neither can it be said that the 6 per cent, basis used for capitalization of earnings was fundamentally erroneous. Great Northern Ry. Co. v. Weeks, supra.
5. Sale of Securities Method. In estimating the system value of the telegraph company on the sale of securities basis, Mr. Murphy testified that the figures were all obtained from the company’s reports to the Public Service Commission as to quantities of securities, and the sale prices were obtained from letters of the company and from information furnished by the company to the Oklahoma state tax commission. “The prices on the securities which they report agree with our records but there are a number of securities they did not report that we had to get prices on elsewhere.”
The appellants complain that the securities which Mr. Murphy here refers to and which the company did not report ought not to have been included in the computation of value according to the sale of securities method.
It appears that the company carries on its books certain large items as liabilities which are peculiar. One item is carried m its reports at about $13,000,000, another item is “premiums on stocks” about $1,-163,350; “bonds owned by plaintiff and deposited as collateral for loans,”.$3,143,000; and “stocks and bonds purchased by plaintiff” amounting to about $1,765,550. The nature of the items was explained by Mr. Dow, testifying for the company. The question whether the items should have been included in Mr. Murphy’s computations of value on the “Sale of Securities” basis is not free from doubt. Mr. Murphy’s testimony reflects that he understood the peculiar nature of the items and gave them careful consideration. He
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_direct1
|
A
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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.
Harry Robert STEED and Mary R. Steed, his wife, and State Farm Mutual Automobile Insurance Co., Appellants, v. Bert ROUNDY, Appellee.
No. 7857.
United States Court of Appeals Tenth Circuit.
March 1, 1965.
Schall, Sceresse & Addis, Thomas D. Schall, Jr., Albuquerque, N. M., for appellants.
Modrall, Seymour, Sperling, Roehl & Harris, and Frank H. Allen, Jr., Albuquerque, N. M., for appellee.
Before LEWIS and SETH, Circuit Judges, and DAUGHERTY, District Judge.
DAUGHERTY, District Judge.
In this action plaintiffs seek to recover damages from the defendant as the result of an accident involving a car driven by the plaintiff, Mary R. Steed, and owned by the plaintiff, Harry Robert Steed. The plaintiff, State Farm Mutual Automobile Insurance Company, joins the above named plaintiffs under rights of subrogation because of an insurance policy issued by it on the said car under which it made payments by reason of the accident involved herein. The said car collided with a horse owned by the defendant on a highway in Valencia .County, New Mexico.
Two New Mexico statutes appear to have been enacted pertaining to this type of situation. The earlier statute in point of time as to enactment is 64-18-62(b), NMSA 1953 Comp., which reads in part as follows:
“(b) It shall be unlawful for any person to permit livestock to wander or graze upon any fenced highway at any time, or during the hours of darkness to drive livestock along or upon any highway, which is normally used by motor vehicles.”
The other statute, enacted after the foregoing statute is 40-23-4, subd. B, NMSA 1953 Comp., which reads in part as follows:
“B. It shall be unlawful for the owner or custodian of live stock to negligently permit or allow his live stock to run at large upon any part of the public highways of this state which are fenced on both sides.”
The later statute specifically requires proof of negligence on the part of the owner of livestock running at large on the public highways before liability would attach. 34 A.L.R.2d § 5, p. 1291. The earlier statute in using the word “permit” also requires that negligence of the owner must be established before liability would attach. 34 A.L.R.2d, § 4, p. 1289, states:
“Where the particular statute involved provides that the owner shall not ‘permit’, ‘allow’, or ‘suffer’ his animals to run at large, the courts have generally held, or recognized, that statutes of this type are not violated in the absence of at least negligence by the owner of the animals.”
Moreover, it is the rule that when there are two acts upon the same subject, they must stand together, if possible, but if repugnant in any of their provisions, the later act operates as a repeal of the earlier one so far and only so far as its provisions are repugnant to those of the earlier act. See Kemp Lumber Co. v. Howard, 10 Cir., 237 F. 574; Veterans’ Foreign Wars, Ledbetter-McReynolds Post No. 3015 v. Hull, 51 N.M. 478, 188 P.2d 334; Stokes v. New Mexico State Board of Education, 55 N.M. 213, 230 P.2d 243; State v. Montiel, 56 N.M. 181, 241 P.2d 844; State v. Valdez, 59 N.M. 112, 279 P.2d 868; and Alvarez v. Board of Trustees of La Union Townsite, 62 N.M. 319, 309 P.2d 989.
Therefore, in view of the foregoing, it is necessary in New Mexico that negligence be shown on the part of the owner of livestock running at large upon the public highways before liability will attach against him for damages or losses sustained by others by reason thereof.
In the case before us, the evidence establishes that a white mare belonging to a neighbor of the defendant kicked open the pasture gate of the defendant in which he kept his horses, including the one involved in the accident herein; that the defendant exercised due care in the construction, maintenance and inspection of his gates and fences in the vicinity of the accident; that the neighbor owning this white mare lived approximately two miles from the defendant and kept said white mare at that location; that while the white mare had a propensity to open or kick down gates and otherwise get in with or cause horses to be released from their enclosures, the defendant herein had never encountered any such activities on the part of said white mare on his premises until the occasion here involved; the evidence fails to show precisely when the white mare kicked open the gate or exactly when or for how long the horse or horses of the defendant were thereby released onto the highway; the evidence also fails to establish any knowledge on the part of the defendant of his horses being released and running at large on the highway until after the accident involved herein.
In this state of the New Mexico law and the facts of this case, the trial court held that the plaintiffs had failed to produce evidence establishing negligence on the part of the defendant in connection with one of his horses running at large on the highway and being involved in the collision with the plaintiffs’ car. The trial judge held that the accident was due to a combination of circumstances beyond the reasonable foreseeability or control of the defendant and for which he should not be held responsible. From the record before us, it appears that these findings of* the trial judge are proper and are amply supported by the evidence herein.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_casedisposition
|
D
|
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.
MICHIGAN v. DeFILLIPPO
No. 77-1680.
Argued February 21, 1979
Decided June 25, 1979
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 40. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 41.
Timothy A. Baughman argued the cause for petitioner. With him on the briefs was William L. Cahalan.
James C. Howarth, by appointment of the Court, 439 U. S. 976, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed by Frank Carrington, Wayne W. Schmidt, Glen R. Murphy, Thomas Hendrickson, James P. Costello, and Richard F. Mayer for Americans for Effective Law Enforcement, Inc., et ah; and by Eveüe J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Harley D. Mayfield and Karl Phaler, Deputy Attorneys General, for the State of California.
Briefs of amici curiae urging affirmance were filed by Edward M. Wise for the American Civil Liberties Union Fund of Michigan; and by John J. Cleary for California Attorneys for Criminal Justice et al.
Laurance S. Smith filed a brief for the National Legal Aid and Defender Association as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The question presented by this case is whether an arrest made in good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality.
I
At approximately 10 p. m. on September 14, 1976, Detroit police officers on duty in a patrol car received a radio call to investigate two persons reportedly appearing to be intoxicated in an alley. When they arrived at the alley, they found respondent and a young woman. The woman was in the process of lowering her slacks. One of the officers asked what they were doing, and the woman replied that she was about to reheve herself. The officer then asked respondent for identification; respondent asserted that he was Sergeant Mash, of the Detroit Police Department; he also purported to give his badge number, but the officer was unable to hear it. When respondent again was asked for identification, he changed his answer and said either that he worked for or that he knew Sergeant Mash. Respondent did not appear to be intoxicated.
Section 39-1-52.3 of the Code of the City of Detroit provides that a police officer may stop and question an individual if he has reasonable cause to believe that the individual’s behavior warrants further investigation for criminal activity. In 1976 the Detroit Common Council amended § 39-1-52.3 to provide that it should be unlawful for any person stopped pursuant thereto to refuse to identify himself and produce evidence of his identity.
When he failed to identify himself, respondent was taken into custody for violation of § 39-1-52.3; he was searched by one of the officers who found a package of marihuana in one of respondent’s shirt pockets, and a tinfoil packet secreted inside a cigarette package in the other. The tinfoil packet subsequently was opened at the station; an analysis established that it contained phencyclidine, another controlled substance.
Respondent was charged with possession of the controlled substance phencyclidine. At the preliminary examination, he moved to suppress the evidence obtained in the search following the arrest; the trial court denied the motion. The Michigan Court of Appeals allowed an interlocutory appeal and reversed. It held that the Detroit ordinance, § 39-1-52.3, was unconstitutionally vague and concluded that since respondent had been arrested pursuant to that, ordinance, both the arrest and the search were invalid.
The court expressly rejected the contention that an arrest made in good-faith reliance on a presumptively valid ordinance is valid regardless of whether the ordinance subsequently is declared unconstitutional. Accordingly, the Michigan Court of Appeals remanded with instructions to suppress the evidence and quash the information. 80 Mich. App. 197, 262 N. W. 2d 921 (1977).
The Michigan Supreme Court denied leave to appeal. We granted certiorari, 439 U. S. 816 (1978), to review the Michigan court’s holding that evidence should be suppressed on federal constitutional grounds, although it was obtained as a result of an arrest pursuant to a presumptively valid ordinance. That holding was contrary to the holdings of the United States Court of Appeals for the Fifth Circuit that such arrests are valid. See United States v. Carden, 529 F. 2d 443 (1976); United States v. Kilgen, 445 F. 2d 287 (1971).
II
Respondent was not charged with or tried for violation of the Detroit ordinance. The State contends that because of the violation of the ordinance, i. e., refusal to identify himself, which respondent committed in the presence of the officers, respondent was subject to a valid arrest. The search that followed being incidental to that arrest, the State argues that it was equally valid and the drugs found should not have been suppressed. Respondent contends that since the ordinance which he was arrested for violating has been found unconstitutionally vague on its face, the arrest and search were invalid as violative of his rights under the Fourth and Fourteenth Amendments. Accordingly, he contends the drugs found in the search were correctly suppressed.
Under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant, search a person validly arrested. United States v. Robinson, 414 U. S. 218 (1973); Gustafson v. Florida, 414 U. S. 260 (1973). The constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. United States v. Robinson, supra, at 235. Here the officer effected the arrest of respondent for his refusal to identify himself; contraband drugs were found as a result of the search of respondent’s person incidental to that arrest. If the arrest was valid when made, the search was valid and the illegal drugs are admissible in evidence.
Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law. Ker v. California, 374 U. S. 23, 37 (1963); Johnson v. United States, 333 U. S. 10, 15, and n. 5 (1948). Respondent does not contend, however, that the arrest was not authorized by Michigan law. See Mich. Comp. Laws § 764.15 (1970). His sole contention is that since the arrest was for allegedly violating a Detroit ordinance later held unconstitutional, the search was likewise invalid.
Ill
It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense. Adams v. Williams, 407 U. S. 143, 148-149 (1972); Beck v. Ohio, 379 U. S. 89, 91 (1964). The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. We have made clear that the kinds and degree of proof and the procedural requirements necessary for a conviction are not prerequisites to a valid arrest. See Gerstein v. Pugh, 420 U. S. 103, 119-123 (1975); Brinegar v. United States, 338 U. S. 160, 174-176 (1949).
When the officer arrested respondent, he had abundant probable cause to believe that respondent’s conduct violated the terms of the ordinance. The ordinance provides that a person commits an offense if (a) an officer has reasonable cause to believe that given behavior warrants further investigation, (b) the officer stops him, and (c) the suspect refuses to identify himself. The offense is then complete.
Respondent’s presence with a woman, in the circumstances described, in an alley at 10 p. m. was clearly, in the words of the ordinance, “behavior . . . warrant [ing] further investigation.” Respondent’s inconsistent and evasive responses to the officer’s request that he identify himself, stating first that he was Sergeant Mash of the Detroit Police Department and then that he worked for or knew Sergeant Mash, constituted a refusal by respondent to identify himself as the ordinance required. Assuming, arguendo, that a person may not constitutionally be required to answer questions put by an officer in some circumstances, the false identification violated the plain language of the Detroit ordinance.
The remaining question, then, is whether, in these circumstances, it can be said that the officer lacked probable cause to believe that the conduct he observed and the words spoken constituted a violation of law simply because he should have known the ordinance was invalid and would be judicially declared unconstitutional. The answer is clearly negative.
This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Gerstein v. Pugh, supra, at 111; Adams v. Williams, supra, at 148; Beck v. Ohio, supra, at 91; Draper v. United States, 358 U. S. 307, 313 (1959); Brinegar v. United States, supra, at 175-176; Carroll v. United States, 267 U. S. 132, 162 (1925).
On this record there was abundant probable cause to satisfy the constitutional prerequisite for an arrest. At that time, of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.
In Pierson v. Ray, 386 U. S. 547 (1967), persons who had been arrested for violating a statute later declared unconstitutional by this Court sought damages for false arrest under state law and for violation of the Fourteenth Amendment under 42 U. S. C. § 1983. Mr. Chief Justice Warren speaking for the Court, in holding that police action based on a presumptively valid law was subject to a valid defense of good faith, observed: “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted' in damages if he does.” 386 U. S., at 555. The Court held that “the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.” Id., at 557. Here, the police were not required to risk “being charged with dereliction of duty if [they did] not arrest when [they had] probable cause” on the basis of the conduct observed.
IV
We have held that the exclusionary rule required suppression of evidence obtained in searches carried out pursuant to statutes, not previously declared unconstitutional, which purported to authorize the searches in question without probable cause and without a valid warrant. See, e. g., Torres v. Puerto Rico, 442 U. S. 465 (1979); Almeida-Sanchez v. United States, 413 U. S. 266 (1973); Sibron v. New York, 392 U. S. 40 (1968); Berger v. New York, 388 U. S. 41 (1967). Our holding today is not inconsistent with these decisions; the statutes involved in those cases bore a different relationship to the challenged searches than did the Detroit ordinance to respondent’s arrest and search.
Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable-cause requirements of the Fourth Amendment. For example, in Almeida-Sanchez v. United States, supra, we held invalid a search pursuant to a federal statute which authorized the Border Patrol to search any vehicle within a “reasonable distance” of the border, without a warrant or probable cause. The Attorney General, by regulation, fixed 100 miles as a “reasonable distance” from the border. 413 U. S., at 268. We held a search so distant from the point of entry was unreasonable under the Constitution. In Berger v. New York we struck down a statute authorizing searches under warrants which did not “particularly describ[e] the place to be searched, and the persons or things to be seized,” as required by the Fourth and Fourteenth Amendments. 388 U. S., at 55-56.
In contrast, the ordinance here declared it a misdemeanor for one stopped for “investigation” to “refuse to identify himself” ; it did not directly authorize the arrest or search. Once respondent refused to identify himself as the presumptively valid ordinance required, the officer had probable cause to believe respondent was committing an offense in his presence, and Michigan's general arrest statute, Mich. Comp. Laws § 764.15 (1970), authorized the arrest of respondent, independent of the ordinance. The search which followed was valid because it was incidental to that arrest. The ordinance is relevant to the validity of the arrest and search only as it pertains to the “facts and circumstances” we hold constituted probable cause for arrest.
The subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for violation of that ordinance, and the evidence discovered in the search of respondent should not have been suppressed. Accordingly, the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
As amended, Code of the City of Detroit §39-1-52.3 provided:
“When a police officer has reasonable cause to believe that the behavior of an individual warrants further investigation for criminal activity, the officer may stop and question such person. It shall be unlawful for any person stopped pursuant to this section to refuse to identify himself, and to produce verifiable documents or other evidence of such identification. In the event that such person is unable to provide reasonable evidence of his true identity, the police officer may transport him to the nearest precinct in order to ascertain his identity.”
While holding the ordinance unconstitutional, the Michigan Court of Appeals construed the ordinance to make refusal to identify oneself a crime meriting arrest. 80 Mich. App. 197, 201 n. 1, 262 N. W. 2d 921, 923 n. 1 (1977).
The preamble to the amendment indicates that it was enacted in response to an emergency caused by a marked increase in crime, particularly street crime by gangs of juveniles.
The woman was arrested on a charge of disorderly conduct; she is not involved in this case.
The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule.
In terms of the ordinance, § 39-1-52.3 authorizes officers to detain an individual who is “unable to provide reasonable evidence of his true identity.” However, the State disclaims reliance on this provision to authorize the arrest of a person who, like respondent, “refuse [s] to identify himself.” Tr. of Oral Arg. 5.
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_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.
A. B. C. FIREPROOF WAREHOUSE CO. v. ATCHISON, T. & S. F. RY. CO.
No. 11929.
Circuit Court of Appeals, Eighth Circuit.
Sept. 9, 1941.
Walter A. Raymond, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for appellant.
Dean Wood, of Kansas City, Mo. (Cyrus Crane, George J. Mersereau, and John N. Monteith, all of Kansas City, Mo., on the brief), for appellee.
' Before GARDNER and JOHNSEN, Circuit Judges, and COLLET, District Judge.
JOHNSEN, Circuit Judge.
On a previous appeal, 8 Cir., 82 F.2d 505, 519, we reversed a judgment for plaintiff, and said: “We conclude that the trial court was in error in refusing to find that the claim asserted and sued on by the warehouse company in this case had been fully adjudicated against it in the litigation in the state courts.” On a remand, the trial court entered a summary judgment in favor of defendant, under Rule 56(b) and (c) of the Federal Rules of Civil Procedure, 28 U. S.C.A. following § 723c, and plaintiff has appealed.
The state court litigation which we regarded as res adjudicata of the warehouse company’s right of action was Train v. Atchison, Topeka & Santa Fe Railway Co., 214 Mo.App. 354, 253 S.W. 497. The situation in that case, as in the present action, arose out of the fact that the warehouse company had undertaken to act as shipping agent for the transportation of three automobiles, belonging to separate owners, from Kansas City, Missouri, to Los Angeles, California. Under its contract with the owners, its responsibility was to cease on delivery of the property to the railway company. It arranged for the automobiles to be shipped by freight, in a single boxcar, under a bill of lading issued to it as consignor. The warehouse company’s employees had charge of the loading, and, before the car was sealed, they undertook to drain the gasoline from the automobile tanks. The fumes of the gasoline were ignited from a lighted lantern, which they were using, and the automobiles were destroyed. Train, as the owner of one of the auto-, mobiles, brought suit, on the ground of negligence, against both the warehouse company and the railway company, in state court, for the value of his property.
Each defendant claimed that the other was solely liable for the loss. The answer of the warehouse company alleged that it had delivered the automobiles to the railway company as carrier and had received its bill of lading therefor; that the property was accordingly in the exclusive possession of the railway company and the latter was solely responsible for it; that, if the fire was due to the acts of any servants or employees of the warehouse company, they were acting outside the scope of their employment, and the warehouse company was not liable for their acts. The railway company's answer in turn alleged that at the time of the fire the property was still in the hands and under the control of the warehouse company; that the fire was due to the acts of the latter’s employees in undertaking to drain the gasoline with the use of a lighted lantern; and that the railway company was accordingly not liable for the resulting damage. Each party tendered instructions in support of its opposing theory, some of which the trial court gave and some of which were refused. The jury returned a verdict against both defendants.
Each defendant appealed, claiming that, as to it, the evidence was insufficient to establish liability. The Kansas City Court of Appeals affirmed the judgment as to the warehouse company, but held that the evidence failed to establish liability as to the railway company. Its opinion said (page 504 of 253 S.W.): “While the bill of lading had been signed, yet the shipper still retained a control over the goods to enable it to finish its work of preparation of the goods for the shipment which was solely its work and not the railway company’s. And the specific negligence charged is shown by the proof to be the negligence of tire shipper or agent of the owner, and not that of any employee of the railway company.”
The warehouse company ultimately was held liable to the owners of all the automobiles, and it seeks to recoup itself from the railway company, by this action on the bill of lading. Manifestly, there could be no liability on the part of the railway company, if the control of the property was still in the hands of the warehouse company at the time of the fire, and if the fire was occasioned by the acts of its employees while engaged in the duty of preparing the goods for shipment. On those questions the warehouse company and the railway company had clearly made themselves legal adversaries in the Train case, by pleadings which drew a specific challenge against each other before the court and jury, by evidence which fully developed the material facts in their conflicting positions, by instructions which could leave no jury doubt as to the elements of separation between them, and by an appeal which placed all the facts in the scales and sought a determination of their sound legal effect. Certainly, as was said in our previous opinion (page 515 of 82 F.2d), the warehouse company should now be es-topped “to claim that the automobiles had not been lost by the shipper’s negligence while preparing them for shipment.” On that question, it has had a full, fair day in court against the railway company, with every fundamental incident' of sound adjudication, and it cannot properly ask to be given the privilege of merely submitting these same facts to another jury.
In City of Springfield v. Plummer, 89 Mo.App. 515, 529, the Missouri court said: “If they were adversary parties, * * * then that the judgment would be a complete and effectual bar * * * admits of no doubt, irrespective of the fact that they were co-defendants, for an issue once tried on its merits and reduced to a final judgment, however raised, precludes the retrial of the same issue between the same parties in any other form of action.”
Similarly, in Nave v. Adams, 107 Mo. 414, 17 S.W. 958, 960, 28 Am.St.Rep. 421, it was declared: “Their interests were essentially adverse to each other, and the adjudication respecting them, upon the pleadings, clearly raising such an issue, is as conclusive as though they had occupied the more formal positions of plaintiff and defendant as to that issue.” Again, in Charles v. White, 214 Mo. 187, 112 S.W. 545, 550, 21 L.R.A.,N.S., 481, 127 Am.St.Rep. 674 and Scheer v. Trust Company of St. Louis County, 330 Mo. 149, 49 S.W.2d 135, 143, the Supreme Court of Missouri said: “There can be no doubt that, upon proper pleadings, a judgment may determine the rights of the defendants even between them-, selves, and our Code provides for such a proceeding * * *.” Other Missouri decisions are set out in our previous opinion and need not be repeated here.
The warehouse company argues that this rule has application only to actions in equity. The language of the Missouri Code contains no such limitation. Section 1237, Mo.Rev.St.1939, specifically provides: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled.” Nor do we find anything in the expressions of the Missouri courts that warrants the distinction here sought to be made, in the effect of litigating a rivally pleaded issue between codefendants, in an action at law and in a suit in equity. Such a distinction would also be without sound logical foundation.
It is our view that, under the statute of Missouri, quoted above, and the decisions of its courts, a judgment is res adjudicata between co-defendants of any controlling fact upon which it is based, in rights and relationships between such co-parties arising out of or connected with the matter in litigation, where they have actually assumed the position of adversaries with respect to such fact throughout the proceeding, by expressly placing it in issue in their pleadings, whether answer or cross-petition, and contesting it on the trial; where they have had the opportunity for a full and fair trial and submission on the merits; where the result of the determination of the litigation by the court or jury is to establish in the trial the legal existence of the fact, as contended for by the one and as denied by the other; and where no new legal situation is presented in the subsequent litigation attempted between them.
The adjudication in the Train case that the warehouse company still was in control of the property, and that the fire was due to the negligence of its employees in preparing the goods for shipment, necessarily would be conclusive, for purposes of this suit, as to all elements of damage claimed to have resulted from the fire, since it was determinative of the foundational right for the single caüse of action that could exist under the bill of lading.
The other contentions raised are without merit, in the light of the views herein expressed and the facts above stated, and they require no further discussion. What might have been the situation under a different state of the pleadings or different conditions of trial is of course not important here. On the basis of the record in the previous trial, which was properly before it, the showing made on the motion for a summary judgment, the opinion of the Missouri court in the Train case, and our opinion on the first appeal, the trial court properly entered a summary judgment for defendant. No new legal situation was shown to exist, and there was no issue of fact to be adjudicated.
Plaintiff certainly cannot complain that its lawsuit has received a hasty obituary, for the fire involved occurred almost twenty-one years ago, and the lawsuit itself has been breathing in the courts for nineteen years. It is properly being given a final repose.
Affirmed.
Compare the expression in Ohio Casualty Insurance Co. v. Gordon, 10 Cir., 95 F.2d 605, 609: “But * * * if co-panties on the record were in fact adversaries as to an issue, and such issue was in fact, litigated and they had full opportunity to contest it with each other, either upon the pleadings between themselves and the plaintiff or upon cross-pleadings between themselves, they are concluded by the adjudication of such issue in a subsequent controversy between each other.”.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_jurisdiction
|
C
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
STATE OF MINNESOTA, by its Commissioner of Public Welfare, Arthur E. NOOT, Petitioner, v. Margaret M. HECKLER, Secretary, and the United States Department of Health and Human Services, Respondents. STATE OF MINNESOTA, by its Commissioner of Public Welfare, Arthur E. NOOT, Appellee, v. Margaret M. HECKLER, in her official capacity as Secretary of the United States Department of Health and Human Services, Appellant.
Nos. 82-1164, 82-2297.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 8, 1982.
Decided Sept. 30, 1983.
Warren Spannaus, Atty. Gen., State of Minn., Alan T. Held, Sp. Asst. Atty. Gen., St. Paul, Minn., for petitioner.
Susanne M. Lee, Dept, of Health and Human Services, Washington, D.C., for respondents; Juan A. del Real, Gen. Counsel, Ann T. Hunsaker, Asst. Gen., Sarah W. Wilcox, Dept, of Health and Human Services, of counsel.
Charles A. Miller, J. Peter Byrne, Covington & Burling, Washington, D.C., for the States of Ala., Conn., Md., Mich., Mo., N.Y., Okl., R.I., W.Va., Wis., amici curiae.
Hubert H. Humphrey, III, Atty. Gen., State of Minn., Alan T. Held, Sp. Asst. Atty. Gen., St. Paul, Minn., for State of Minn.
Before LAY, Chief Judge, ROSS and FAGG, Circuit Judges.
LAY, Chief Judge.
These cases were consolidated for purposes of resolving issues of subject matter jurisdiction and conflicting interpretations of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1976 & Supp. V 1981). The State of Minnesota contests a decision of the Secretary of the United States Department of Health and Human Services (HHS) disallowing federal financial participation to the State under the Medical Assistance Program (Medicaid) for costs incurred in three community residential facilities. The facilities were determined by the Secretary to be “institutions for mental diseases” (IMDs) and thus were not qualified for partial federal reimbursement of medical costs for individuals eligible for Medicaid.
Beginning in 1973, the State of Minnesota paid Medicaid claims for individuals receiving services in the Andrew Care Home, the Birchwood Care Home, and the Hoikka House. The three community residential care homes had been certified as “intermediate care facilities” (ICFs). “Intermediate care facility services” for eligible individuals under 65 are reimbursable under the Act other than such services provided in an institution for tuberculosis or an “institution for mental diseases.” See 42 U.S.C. § 1396d(a)(15), (18)(B) (1976). The residents of these three homes included a majority of individuals with mental illness diagnoses. During the quarters ending September 30,1977 through June 30,1978, Minnesota claimed and was paid $896,159 in federal financial participation for services provided to the Medicaid recipients at these three facilities. In November 1978 the HHS Health Care Financing Administration (HCFA) submitted an audit report which recommended disallowance of the $896,159 claim on the ground that these facilities were IMDs. The agency employed unpublished interpretive guidelines to determine if the “overall character” of the facilities fit the regulatory definition of an IMD as being “primarily engaged in providing diagnosis, treatment or care of persons with mental diseases.” See 42 C.F.R. § 435.1009(e) (1982); see also id. § 440.-140(a)(2) (1982). As a result, the Secretary disallowed the State’s claim. The State petitioned the HHS Departmental Grant Appeals Board for a review of the decision. Consolidating the petition with requests by the States of Connecticut, California, and Illinois to review similar disallowances, the Board upheld the agency decision. Departmental Grant App.Bd. Nos. 79-52-MN-HC, 79-89-MN-HC, 80-44-IL-HC, 80-150-CT-HC, 80-184-CA-HC (Nov. 30, 1981). HHS recovered the full amount of these funds paid to Minnesota by offsetting federal financial participation in a supplemental grant to the State.
Minnesota filed a petition for direct review of the final agency order with this court; such action was taken to protect the right of review in the event the dispute was determined to be a plan conformity matter under 42 U.S.C. § 1316(a)(3) (1976 & Supp. V 1981), and not a disallowance under 42 U.S.C. § 1316(d) (1976 & Supp. Y 1981). The State also sought review of the Board’s decision in the United States District Court for the District of Minnesota by filing an action for declaratory and injunctive relief as well as restoration of its grant money withheld by HHS.
(d) Whenever the Secretary determines that any item or class of items on account of which Federal financial participation is claimed under title... XIX.... shall be disallowed for such participation, the State shall be entitled to and upon request shall receive a reconsideration of the disallowance.
The district court granted summary judgment in favor of the State of Minnesota, holding that HHS acted arbitrarily, capriciously, and outside the scope of its authority; it ordered HHS to return to the State the disallowed funds. Minnesota v. Schweiker, No. 4-82-155, slip op. at 14 (D.Minn. Aug. 25,1982). HHS now appeals this decision. The two cases were consolidated to resolve the jurisdictional issues and the merits.
I. Plan Conformity or Disallowance.
A fundamental question is whether this dispute involves a noncompliance question or a disallowance. Both the Secretary and the State urge that the matter involves a disallowance and therefore this court has no jurisdiction to directly review the Board’s decision. We agree.
Recent decisions from other circuits have taken divergent approaches to assessing the nature of Medicaid controversies. The First Circuit employs a functional analysis which examines three criteria: (1) whether the matter could comfortably fit within the plan conformity language of 42 U.S.C. § 1396c (1976); (b) whether the broad nature of the dispute points to characterization as a conformity issue; and (3) what procedures and label the Secretary has chosen, “not as definitive but as entitled to some respect.” See Massachusetts v. Departmental Grant Appeals Board, 698 F.2d 22, 27-30 (1st Cir.1983). Cf. New Jersey v. Department of Health and Human Services, 670 F.2d 1262, 1272 (3d Cir.1981) (New Jersey I) (court must independently evaluate underlying substance of dispute so that court of appeals’ jurisdiction is not contingent upon Secretary’s unfettered discretion); State Department of Public Welfare v. Califano, 556 F.2d 326, 330 (5th Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 78, 58 L.Ed.2d 108 (1978) (court should review Social Security Act, legislative history, and circumstances of claim to see what label best serves purposes of the act and the equities of the situation).
In contrast, the Seventh Circuit found the functional approach “complicated and therefore uncertain in application — a serious weakness in a jurisdictional test.” Illinois v. Schweiker, 707 F.2d 273, 278 (7th Cir.1983). Instead, it adopted a literal test which allows HHS’ choice of the plan conformity or disallowance label and procedures to control. Id. Cf. Connecticut v. Schweiker, No. 82-4023 (2d Cir. April 20, 1982) (without explanation, court of appeals dismissed for lack of jurisdiction a petition for direct review of alleged plan conformity issue; Secretary had denominated the dispute as a disallowance); Department of Public Health v. Departmental Grant Appeals Board, 672 F.2d 916 (6th Cir.1981) (same); Washington Department of Social and Health Services v. Schweiker, No. 81-7414 (9th Cir. Sept. 30, 1981) (same).
Although some deference is to be accorded the Secretary’s opinion on these jurisdictional fact issues, we find the functional test in Massachusetts v. Departmental Grant Appeals Board, 698 F.2d at 27—30, is more in accord with the traditional role of federal judicial review which mandates judicial inquiry as to congressional intent, jurisdiction, and the legality of federal administrative actions. Accord New Jersey I, 670 F.2d at 1272.
The underlying nature of this controversy stems from the discrete reason that three nursing homes were decertified and thus did not qualify for federal funding. In this regard, the (^strict court correctly observed “[t]his dispute does not concern the validity of Minnesota’s Medicaid plan or its overall administration.” Minnesota v. Schweiker, slip op. at 4-5. Plan conformity issues under the statute, sections 1316(a)(3) and 1396c, generally relate to compliance questions that have a broad impact on the overall state program. We cannot say, under the plan conformity specifications of section 1396c(2), that the State in the administration of its Medicaid plan failed to comply substantially with the provisions of 42 U.S.C. § 1396a (1976 & Supp. Y 1981). The decertification here is basically rooted in a failure to comply with an agency interpretive guideline. In addition, the claim arises out of the disallowance procedures involving a specific audit, and only a retroactive, not prospective, sanction was imposed. We thus conclude that the dispute clearly relates to a disallowance rather than a conformity issue. Accord Connecticut v. Schweiker, No. 82-4023 (2d Cir. Apr. 20,1983); Connecticut v. Schweiker, 557 F.Supp. 1077, 1079 & n. 5 (D.Conn. 1983).
II. Jurisdiction of District Court.
Although section 1316(a)(3) grants a state dissatisfied with a plan conformity decision the right to direct review in a court of appeals, the provision for disallowances, section 1316(d), is silent as to the availability of judicial review for such disputes.
We agree with the courts that have found that disallowance decisions under section 1316(d) are judicially reviewable. Illinois v. Schweiker, 707 F.2d at 275-277; Alameda v. Weinberger, 520 F.2d 344, 347-48 (9th Cir.1975); Colorado Department of Social Services v. Department of Health and Human Services, 558 F.Supp. 337, 347-48 (D.Colo.1983); Connecticut v. Schweiker, 557 F.Supp. at 1079. Cf. Solomon v. Califano, 464 F.Supp. 1203 (D.Md.1979) (court reviewed disallowance decision without discussing jurisdiction); Georgia v. Califano, 446 F.Supp. 404 (N.D.Ga.1977) (same). Contra State Department of Public Welfare v. Califano, 556 F.2d 326, 329 n. 4, 332 (5th Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 78, 58 L.Ed.2d 108 (1978) (dictum).
Although the district court has jurisdiction to review this disallowance, the court’s power is limited to granting prospectively-oriented declaratory relief. We must vacate the district court’s money award restoring past disallowance funds since jurisdiction for this claim is exclusively in the United States Claims Court.
The exclusive jurisdiction of the Claims Court applies to monetary claims in excess of $10,000 against the United States and its agencies. 28 U.S.C. § 1491 (1976 & Supp. V 1981). Since 1972, the Claims Court also can grant limited equitable relief collateral to a monetary award in order to resolve an entire controversy. See id.; Polos v. United States, 556 F.2d 903, 906 (8th Cir.1977); Melvin v. Laird, 365 F.Supp. 511, 516-20 (E.D.N.Y.1973).
noncompliance was only with a federal requirement in a “program instruction”); and Solomon v. Califano, 464 F.Supp. 1203, 1206-08 (D.Md.1979) (plan conformity found although noncompliance was only with state’s plan).
If the declaratory or injunctive relief a claimant seeks has significant prospective effect or considerable value apart from merely determining monetary liability of the government, the equitable relief sought is paramount and the district court may assume jurisdiction over the nonmonetary claims. See Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir.1980); Mega-pulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C. Cir.1982); Rowe v. United States, 633 F.2d 799, 801-02 (9th Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981); cf. Sellers v. Brown, 633 F.2d 106, 108 (8th Cir.1980). The fact that a suit for nonmonetary relief in the district court may also provide a basis for a grant of money damages against the United States is not a sufficient reason to foreclose district court jurisdiction. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 71 n. 15, 98 S.Ct. 2620, 2629 n. 15, 57 L.Ed.2d 595 (1978); Laguna Hermosa Corp. v. B.E. Martin, 643 F.2d 1376, 1379 (9th Cir.1981); Melvin v. Laird, 365 F.Supp. at 520; see also Beller v. Middendorf, 632 F.2d 788, 799 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981). However, the power of the district court in these types of cases is limited; sovereign immunity of the United States is waived in the district court under 5 U.S.C. § 702 (1982) only for claims against a federal agency or its officers seeking relief “other than money damages.” See United States v. Mitchell,-U.S.-,-& n. 32, 103 S.Ct. 2961, 2973 & n. 32, 77 L.Ed.2d 580 (1983); Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.1979). See generally K. Davis, Administrative Law Treatise § 27.00-.10 (Supp.1980 & 1982). This jurisdictional limitation results in a bifurcation of claims between the district court and the Claims Court, because the district court is unable to grant monetary relief on claims over $10,000. See Giordano v. Roudebush, 617 F.2d at 514-15; Laguna Hermosa Corp. v. B.E. Martin, 643 F.2d at 1379 (9th Cir.1981); Rowe v. United States, 633 F.2d at 801-02; Beller v. Middendorf, 632 F.2d at 799; Melvin v. Laird, 365 F.Supp. at 518-19. But of. Woodland Nursing Home Corp. v. Califano, 487 F.Supp. 9, 11-13 (S.D.N.Y.1979) (district court with jurisdiction over nonmonetary claim can exercise pendent jurisdiction over monetary claim to provide a “ ‘common sense solution’ ” for complete relief in one court). Such bifurcation is unavoidable when the Claims Court lacks the power to grant the type of declaratory or injunctive relief sought. See Rowe v. United States, 633 F.2d at 801-02; Shaw v. Pierce, 534 F.Supp. at 738. Contra Woodland Nursing Home Corp. v. Califano, 487 F.Supp. at 11-13.
Under the facts involved in this dispute, the disallowance is rooted in the federal agency’s guidelines interpreting the meaning of the statutory phrase “institution for mental diseases.” The guidelines have an effect upon current and future federal benefits to the State in addition to past federal financial participation. The State estimates that potentially over $10 million in federal funds to the State of Minnesota are at stake here, representing not only past claims collected but other claims foregone when Minnesota stopped submitting further claims after the disallowances in 1978 to avoid risking additional losses. The potential current and future claims foregone dwarf the amount of the disallowance the State seeks to have overturned. Although the Claims Court possesses the jurisdiction necessary to make a legal ruling upon which to base the award of a money judgment, see Pauley Petroleum Inc. v. United States, 591 F.2d 1308,1315, 219 Ct.Cl. 24, 32 (Ct.Cl.), cert. denied, 444 U.S. 898,100 S.Ct. 206, 62 L.Ed.2d 133 (1979), the declaratory relief sought here has conspicuous impact beyond establishing a right to the disallowed funds. The prospective, independent significance of the declaratory relief requested makes it, not the compensatory money payments, the primary relief sought by the State of Minnesota. Therefore the district court had jurisdiction over the non-monetary claims under 28 U.S.C. § 1331 (1976 & Supp. V 1981) and 28 U.S.C. § 2201 (1976 & Supp. V 1981).
III. The Merits.
In deciding that the three facilities in question were “institutions for mental diseases” (IMD) under agency interpretive guidelines, the HHS’ Departmental Grant Appeals Board reached conclusions of both fact and law. The agency’s formal findings of fact will be upheld if supported by substantial evidence in the record considered as a whole. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971); Volkswagenwerk Aktiengesellsehaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-21 & n. 19, 86 S.Ct. 1018, 1026-27 & n. 19, 16 L.Ed.2d 131 (1966); 5 U.S.C. § 706(2)(E) (1982); see generally K. Davis, supra, §§ 29.01-.11 (1958 & Supp.1980 & 1982).
In contrast, the agency’s guidelines interpreting a statutory term and a regulation ultimately involve questions of law which are to be resolved by the court. See Batterton v. Francis, 432 U.S. 416,424-26 & n. 9, 97 S.Ct. 2399, 2404-06 & n. 9, 53 L.Ed.2d 448 (1977); Social Security Board v. Nierotko, 327 U.S. 358, 368-69, 66 S.Ct. 637, 642-43, 90 L.Ed. 718 (1946); White Industries, Inc. v. Federal Aviation Administration, 692 F.2d 532, 534 (8th Cir.1982); 5 U.S.C. § 706 (1982). “Ordinarily, administrative interpretations of statutory terms are given important but not controlling significance.” Batterton v. Francis, 432 U.S. at 424, 97 S.Ct. at 2404; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Research Medical Center v. Schweiker, 684 F.2d 599, 602 (8th Cir.1982); see generally K. Davis, supra, § 30.13.
As in all cases focusing on statutory construction, we must initially look to the language chosen by Congress. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); Bread Political Action Committee v. Federal Election Committee, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982). The ordinary meaning of the words used are presumed to express congressional purpose; thus, absent clearly expressed legislative intention to the contrary, the language is regarded as conclusive. American Tobacco Co. v. Patterson, 455 U.S. at 68,102 S.Ct. at 1537.
The Medicaid statute defines federal “medical assistance” for needy individuals to include, among other items, “intermediate care facility services (other than such services in an institution for tuberculosis or mental diseases) for individuals who are determined... to be in need of such care.” 42 U.S.C. § 1396d(a)(15) (1976) (emphasis added). The identical exclusion for services in an IMD is repeated in sections granting medical assistance for “inpatient hospital services” and “skilled nursing facility [SNF] services.” Id. § 1396d(a)(l), (4)(A). A correlating section, however, allows payments for “inpatient hospital services, skilled nursing facility services, and intermediate care facility services for individuals 65 years of age or over, in an institution for tuberculosis or mental diseases.” Id. § 1396d(a)(14) (emphasis added). Additionally, the statute provides for funds for “inpatient psychiatric hospital services for individuals under age 21.” 42 U.S.C. § 1396d(a)(16) (1976 & Supp. V 1981). The statutory definition of “medical assistance” clarifies the prohibition against payments for individuals between age 21 and 65 in an IMD: “[EJxcept as otherwise provided in paragraph (16) [inpatient psychiatric services for individuals under age 21], such term [“medical assistance”] does not include... any such payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an institution for tuberculosis or mental diseases.” Id. § 1396d(a)(18)(B) (emphasis added).
Of significance here is the statutory definition of an ICF:
[T]he term “intermediate care facility” means an institution which (1) is licensed under State law to provide, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities.... The term “intermediate care facility” also includes any skilled nursing facility or hospital which meets the requirements of the [preceding] sentence.... With respect to services furnished to individuals under age 65, the term “intermediate care facility” shall not include, except as provided in subsection (d) of this section, any public institution or distinct part thereof for mental diseases or mental defects.
Id. § 1396d(c) (emphasis added).
Conspicuously omitted from section 1396d is any statutory characterization of an “institution for mental diseases.” The Secretary, however, has promulgated a regulation defining an IMD:
“Institution for mental diseases” means an institution that is primarily engaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. Whether an institution is an institution for mental diseases is determined by its overall character as that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases, whether or not it is licensed as such.
42 C.F.R. § 435.1009e (1982) (emphasis added). See also id. § 440.140(a)(2).
The consistency of this regulation with the statute is not contested here. What is attacked is the agency’s finding that the three facilities in question are IMDs based on HHS’ interpretation of this regulation. Certain unpublished agency guidelines were employed to determine the overall character of these facilities as IMDs. The operating guidelines were developed in response to perceived problems of deinstitutionalization whereby some patients between 21 and 65 years old in state mental hospitals, for which federal Medicaid payments were not obtainable, were relocated by the states in community-based residential facilities, such as ICFs, for which federal funds were available. HHS circulated intra-office instructional bulletins to assist federal field office personnel in their determinations as to the “overall character” of a facility. The following criteria identifying IMDs were used:
1. A facility is licensed as a mental institution;
2. It advertises as a mental institution;
3. More than 50 percent of the patients have a disability in mental functioning [as defined in the International Classification of Diseases ];
4. It concentrates on managing patients with behavior or functional disorders and is used largely by mental hospitals for alternative care;
5. It is under the jurisdiction of the mental health authority;
6. It is frequently or predominantly used for individuals who are either discharged from mental hospitals or would otherwise be admitted to them;
7. The facility is in proximity to a State Mental Institution (for example, within a 25-mile radius);
8. The age distribution is uncharacteristic of nursing home patients; and
9. The basis of Medicaid eligibility for patients under 65 is a mental disability.
Letter from Tera S. Younger, HCFA Long Term Care Policy Group, to B.F. Simmons (Nov. 3, 1980) (with Discussion Paper: Redefinition on Institution for Mental Diseases attached). See HHS Field Staff Information and Instruction Series (FSIIS) FY-76-156 (Sept. 14, 1976); FY-76-97 (May 3, 1976); FY-76-44 (Nov. 7, 1975).
The State of Minnesota asserts that these criteria interpreting the IMD regulation conflicts with the Medicaid provisions of the Social Security Act and with agency regulations. The State contends that if a definition consistent with the statute had been applied, the three facilities would not have been classified as IMDs. It urges that Congress intended the phrase “institution for mental diseases” to apply only to state mental hospitals, or alternatively, that the term applies only to institutions whose primary purpose is to provide specialized care or services for mental illness. Thus, the State contends, inquiry into whether a facility is an IMD must focus on the nature of services that the facility renders, not on the diagnosis or type of illness manifested by the patient. It stresses, for example, that the use of the “51% rule” based on the number of patients in a home with diagnoses of mental diseases is a particularly inap-' propriate and arbitrary factor under the statute.
The agency defends its position by pointing to the statutory section 1396d(a) which lists hospital services separately from SNF and ICF services, and then excludes from payment all three types of services in an IMD. Thus, it says, all IMDs are not traditional mental hospitals. Under its view, the term IMD must be able to include SNFs and ICFs or else the word “hospital” would be superfluous because of being incorporated into the term IMD. HHS argues that the Board’s decision upholding the disallowance was rationally based, that the guideline criteria were rationally related to identification of an IMD, and that no one criterion was determinative. It finds the State’s argument against the “51% rule” unfounded here when at least 86% of the patients at each of the three facilities had diagnoses of a mental disease. It maintains that adoption of Minnesota’s position focusing on type of care given would result in rewarding facilities which do not provide the services required by patients’ diagnoses.
We hold that the Board’s interpre-. tation of its regulation defining an IMD, and its extensive reliance on diagnoses-based criteria for the purpose of revealing the overall character of an IMD, were inconsistent with the provisions and purposes of the Social Security Act. Accord Connecticut v. Schweiker, 557 F.Supp. 1077, 1091 (D.Conn.1983). We find that the characterization of an IMD must fundamentally center on the type of care or nature of services required, not on the mere presence in a facility of patients who have, or at one time did have, diagnoses of a mental disease. Thus, because insufficient fact finding was performed on the proper basis, we hold that the Board’s decision upholding the disallowance was not supported by substantial evidence on the record as a whole.
Our conclusion is rooted in the language of section 1396d defining “medical assistance,” and is supported by legislative history as well as other statutory provisions of the Social Security Act. The skeletal framework of allowable “medical assistance” payments in section 1396d(a) is built around various types and levels of care; the section specifies payments for “inpatient hospital services,” “skilled nursing facility services,” “intermediate care facility services,” “inpatient psychiatric hospital services,” and so on. 42 U.S.C. § 1396d(a)(l), (4)(A), (15), (16) (1976). The statute specifies payments for “intermediate care facility services... for individuals who are determined, in accordance with section 1396a(31)(A) of this title, to be in need of such care.” 42 U.S.C. § 1396d(a)(15) (1976) (emphasis added).
Section 1396d(c) defining an “intermediate care facility” supplies manifest clarification not only of what an ICF is, but more importantly for our purposes, how an IMD is and is not to be exclusively characterized. The ICF definition expressly authorizes care of patients in an ICF with diagnoses of either “mental or physical condition[s]” as long as the illnesses involved “require” a lesser “degree of care and treatment” than a hospital or SNF provides. Cf. Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir.1980) (statutory limitations for IMDs “do not apply to mental health problems in general”).
The legislative history of the IMD exclusion and ICF coverage reinforces the statutory language that Medicaid benefits cannot be denied solely on the ground that an institution primarily serves mental patients and that the paramount criterion for distinguishing an IMD from an ICF must be the degree of care and treatment required by patients. The limitation in the Social Security Act for patients in an “institution for mental diseases” was first enacted in 1950 based on the reason that “ ‘long-term care in such hospitals had traditionally been accepted as a responsibility of the States.’ ” Schweiker v. Wilson, 450 U.S. 221,237 n. 19, 101 S.Ct. 1074, 1084 n. 19, 67 L.Ed.2d 186 (1981); see id. at 225 n. 5, 101 S.Ct at 1078 n. 5. A House report in 1963 stressed the deficiencies of the “State mental institutions”: “Only a small percentage of the institutions can be said to be therapeutic and not merely custodial. In 1959, there... [was] less than 1 psychiatrist for 500 patients.” H.R.Rep. No. 694, 88th Cong., 1st Sess. 11, reprinted in 1968 U.S.Code Cong. & Ad.News 1054, 1064.
In contrast, the Medicaid program, which was enacted as Title XIX of the Social Security Act in 1965, was “designed to alleviate the cost of health care which is active and remedial rather than custodial in nature.” Legion v. Richardson, 354 F.Supp. 456, 459 (S.D.N.Y.), aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973); accord Woe v. Matthews, 408 F.Supp. 419, 425 n. 16 (E.D.N.Y. 1976), aff’d mem. sub nom. Woe v. Weinberger, 562 F.2d 40 (2d Cir.1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 895, 54 L.Ed.2d 799 (1977). The purpose of Title XIX is expressly decreed “to furnish... medical assistance..., rehabilitation and other services to help... individuals attain or retain capability for independence or self-care.” 42 U.S.C. § 1396 (1976).
Congress recognized the “great strides in the field of mental disease” which allowed the development of mental health programs “to cure the patients and release them from the institutions, instead of requiring them to spend the rest of their lives in them.” 111 Cong.Rec. 21, 348-49 (1964) (statements of Sen. Long). Congress thus authorized exceptions to the IMD exclusion in 1965 for the mentally ill in general medical facilities and for individuals age 65 and over in IMDs. However, the exceptions were granted on the condition that the states arrange with IMDs to develop alternative methods of care for all mental patients, “particularly for the aged who are mentally ill.” S.Rep. No. 404, 89th Cong., 1st Sess. 146, reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2085; see Connecticut v. Schweiker, 557 F.Supp. at 1083 n. 13, 1084 n. 15. This legislation, requiring “plans for the use of other methods of care, such as nursing homes, short-term care in general hospitals, foster family care, and others,” besides the standard “[institutional treatment and care in the individual’s own home,” was intended to “give further encouragement to the trend in the States for discharging from mental hospitals to the community the aged who are considered able to care for themselves, under some form of protective arrangements.” S.Rep. No. 404, 89th Cong., 1st Sess. 146, reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2085. See 42 U.S.C. § 1396a(a)(20), (21) (1976 & Supp. V 1981).
ICF coverage was added to the Medicaid provisions in 1971 and was explicitly intended for persons who “in the absence of
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
HOUSER, Dennis L., and Houser, Natalie A. d/b/a Colonial Theatre Enterprises, Appellants v. FOX THEATRES MANAGEMENT CORP.; Fox, Richard; Fox, Donald; Columbia Pictures Industries, Inc.; Abraham A. Dortheimer; Universal Film Exchanges, Inc.; Ciccotta, Pete; Warner Bros. Distributing Corp.; Carroll, Frank; Avco-Embassy Pictures Corp.; Buena Vista Distributing Co., Inc.; Schwartz, Harvey; Filmways Pictures, Inc.; Twentieth Century-Fox Film Corp.; Korte, Louis; Paramount Pictures Corp.; United Artists Corp.
No. 87-5653.
United States Court of Appeals, Third Circuit.
Argued Feb. 29, 1988.
Decided May 9, 1988.
F. Murray Bryan, McNees, Wallace & Nurick, Harrisburg, Pa., Lewis Bernstein (argued), Lewis Bernstein, P.C., Washington, D.C., for appellants.
Judah I. Labovitz (argued), Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for appellees Fox Theatres Management Corp., Richard Fox and Donald A. Fox.
Dennis R. Suplee (argued), David G. Bat-tis, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellees Columbia Pictures Industries, Inc., Abraham A. Dor-theimer, Universal Film Exchanges, Inc., Pete Ciccotta, Warner Bros. Distributing Corp., Frank Carroll, Avco-Embassy Pictures Corp., Filmways Pictures, Inc., Twentieth Century-Fox Film Corp., Louis Korte, Paramount Pictures Corp., and United Artists Corp.
Before SEITZ, HIGGINBOTHAM and COWEN, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal arises from an order of the district court granting summary judgment in favor of the defendants. Upon review, we conclude that the plaintiffs failed to present sufficient evidence in support of their claims that defendant Fox willfully monopolized the exhibition of first-run films in violation of section 2, and that Fox conspired separately with the individual distributor defendants in violation of section 1, of the Sherman Act. Therefore, we will affirm the district court’s grant of summary judgment in favor of the defendants.
I.
On any given Saturday night of forty years ago, crowds filled elegant and spacious art deco movie houses in town centers across America to watch such stars as Lauren Bacall and Humphrey Bogart grace the giant silver screen. At that time, Lebanon, Pennsylvania supported five downtown motion picture theaters. Today, reflecting a national trend, the elegant downtown theaters are virtually extinct and have been replaced by smaller modern twin theaters adjacent to suburban shopping centers. By 1983, the greater Lebanon area supported two suburban twin theaters and a drive-in; however, the only operating downtown theater was the State, showing mainly X-rated films. This case arises out of one couple’s attempt to restore the grand old Colonial Theater in downtown Lebanon to its former prominence.
The plaintiffs, Dennis and Natalie Houser, purchased the Colonial Theater in 1979. The Colonial is a large, old elegant theater in excellent condition with modern equipment and facilities located in a well-maintained residential section of downtown Lebanon. For several years prior to the Hous-ers’ acquisition, the Colonial had been operated as a sub-run theater on weekends only. Dennis Houser is an accountant with no prior experience in the motion picture business, except that he had done the books for two prior operators of the Colonial. He acquired the Colonial to pacify an accounting client who had complained about the Housers’ participation in the client’s initial acquisition of the theater. Natalie Houser also had no experience in operating a motion picture theater. The Housers purchased the Colonial for $21,400 in cash and the assumption of $92,000 in outstanding obligations with full knowledge that the theater was losing money, and that it had not made a profit in several years prior to the acquisition. It was the Housers’ intention to re-establish the Colonial as a profitable first-run film theater beginning in May, 1980.
At that time, defendant Fox Theatres Management Corporation, through Richard and Donald Fox (“Fox”), operated two suburban twin theaters located adjacent to shopping centers in the Lebanon area, and a downtown theater. These three Fox Theaters with a total of five screens were the only ones exhibiting first-run films on a full-time basis in the Lebanon area. In December, 1981, Fox closed its downtown theater leaving two suburban twin theaters exhibiting first-run films in Lebanon. These theaters are part of a chain operated by Fox with 81 screens throughout southeastern Pennsylvania, Maryland and Delaware.
In the motion picture industry, each film distributor distributes its pictures in its own way. In this case, most of the distributor defendants have Philadelphia branch offices, run by branch managers, which license films in the Philadelphia exchange territory, including Lebanon. Generally, a branch manager notifies exhibitors in a given area of availability dates for new releases, solicits bids or negotiates licenses directly, and makes any necessary adjustments in agreed-upon rental terms.
The precise pictures and release dates made available to individual theaters is based on such varied factors as the nature of the picture, the distributor’s judgment as to whether a particular film is best suited to initial release in larger cities or to “going wide” in a number of towns at the same time, the length of playing time sought by an exhibitor, and the number of prints of a film that will be available. In the Philadelphia exchange, most pictures are offered first in the Philadelphia, Trenton and Wilmington areas. Occasionally, a picture will also open at the same time in relatively large markets such as Harrisburg or Allentown, and might even open simultaneously in such smaller markets as Lebanon.
Once the availability date of a film is set, exhibitors in an area are invited by the distributor either to submit written bids or to negotiate directly for films that interest them. Film rental fees are based on a percentage of each theater’s weekly gross receipts, or “box office receipts.” Generally, the percentage terms decline from week to week during a film’s run and are dependent on the length of playing time offered. Occasionally, an exhibitor engages in “overbooking,” which is the usual practice of committing to the exhibition of a film when no screen is available. The purpose of overbooking is to have films on reserve in case the anticipated run of an exhibited film has to be cut short because the film bombs. Overbooking can also occur when a successful film is held over beyond its anticipated run. Sometimes an exhibitor will agree to pay a distributor a guaranteed minimum film rental or advance.
A film distributor’s revenues depend directly upon the ability of a theater to attract customers. The decision to license a picture to one theater or another is based on the distributor’s evaluation of the probable box office gross at each theater. Estimating a particular theater’s grossing potential is a complex judgment call, which depends on such varied factors as the location of the theater, its cleanliness, and its history and reputation as a full-time first-run theater. In assessing grossing potential, a theater’s track record regarding past box office receipts and payment history is very important.
Between May, 1980 and September, 1982, the Housers employed four successive booking agents who attempted to book first-run films at the Colonial with varying success. For example, beginning in May, 1980 until the end of that year, the Colonial successfully booked first-run films during 18 of the 34 weeks. The Colonial either exhibited sub-run films or was closed during the remaining 16 weeks. In another period, beginning in January, 1982 through September, 1982, the Colonial exhibited first-run films in 21 of 36 weeks, but was closed for 14 of those weeks. During this same period, Fox exhibited sub-run films on at least one of its screens during 19 of the 36 weeks. At various times, the Hous-ers were taken off service by two film distributors for failure to pay film rentals. Finally, in September, 1982, the Housers closed the Colonial arguing that they were unable to obtain adequate Fall, 1982 bookings; however, the record indicates that they had already succeeded in booking one first-run film and did not vigorously pursue booking other available films.
During this period between May, 1980 and September, 1982, the Housers presented evidence that Fox engaged in overbooking at its theaters on a significant scale. For example, over the 89 week period from January, 1981 until September, 1982, Fox overbooked to some degree during 63 of the 89 weeks. In addition, in the Winter of 1980-81, Richard Fox visited the branch managers of the distributor defendants to tout his theaters and allegedly unfairly disparaged the Colonial’s ability to generate good box office results. Finally, in July, 1981, Donald Fox inaugurated a practice of giving gifts to the distributor defendant’s branch managers.
On July 28, 1983, the Housers brought this antitrust action pursuant to the Clayton Act, 15 U.S.C. § 15, and sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. They alleged that Fox Theatres monopolized and attempted to monopolize first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. The Housers also claimed that each of the separate distributor defendants conspired individually with Fox to deny the Colonial first-run films in violation of section 1 of the Sherman Act.
After the completion of discovery, all the defendants moved for summary judgment on September 3,1985, and the district court referred the motions to a magistrate on November 20, 1985. On July 3, 1986, the magistrate filed his report recommending that summary judgment be granted in favor of all the defendants. On August 12, 1987, the district court entered an order adopting the report of the magistrate, granting judgment in favor of all the defendants.
II.
In reviewing the district court’s grant of summary judgment in favor of Fox and the distributor defendants, we employ the same test the district court applied under Fed.R.Civ.P. 56. In doing so, we must determine whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there was no genuine issue as to any material fact, and that Fox and the distributor defendants are entitled to a judgment as a matter of law. Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir.1986); Alberta Gas Chemicals Ltd. v. E.I. Du Pont De Nemours and Co., 826 F.2d 1235, 1238-39 (3d Cir.1987); Fed.R.Civ.P. 56(c). Fox and the distributor defendants are not required to refute the affirmative elements of the Housers’ claims; instead, they need only point out the absence or insufficiency of the Housers’ evidence offered in support of those affirmative elements. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Mat-sushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A.
First, we will address the Housers’ claim that Fox Theatres, through the defendants Richard Fox and Donald Fox, monopolized and attempted to monopolize first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. Section 2 of the Sherman Act states, in relevant part, that “[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... shall be deemed guilty of a felony....” 15 U.S.C. § 2 (1982). The offense of monopoly under section 2 has two elements: “(1) possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
The Housers have presented sufficient evidence in this case to survive Fox’s motion for summary judgment related to the first element of a section 2 monopoly offense. We agree with the finding of both the magistrate and district court that the Housers have established first-run films as the relevant product market and Lebanon, Pennsylvania as the relevant geographic market. The next question is whether Fox possesses monopoly power within the relevant market. Monopoly power is defined as “the power to control prices or exclude competition.” United States v. E.I. Du Pont De Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). The Supreme Court has held that the existence of such monopoly po’ ,er “ordinarily may be inferred from [a] predominant share of the market.” United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). The Housers tendered evidence that Fox controlled between 66% and 71% of the screens exhibiting first-run films in Lebanon between May, 1980 and September, 1982. I App. 123A. Therefore, in light of our obligation to draw all reasonable inferences in favor of the Housers, we infer from Fox’s predominant share of the market that it possessed monopoly power over the exhibition of first-run films in Lebanon during this period.
The more difficult issue is whether the Housers have met their burden of presenting sufficient evidence related to the second element of a section 2 monopoly offense — proof of the “willful acquisition or maintenance” of monopoly power. United States v. Grinnell Corp., 384 U.S. at 570-71, 86 S.Ct. at 1704. The Housers’ central allegations in support of their claim that Fox willfully maintained its monopoly power are: (1) that Fox actively disparaged the Colonial’s box office gross potential to the defendant distributors; (2) that Fox gave excessive gifts to managers of the distributor defendants; and (3) that Fox’s practice of allegedly excessive overbooking was a willful attempt to prevent Colonial from becoming a first-run film theater.
The Housers’ first two claims are without merit. Based on their own affidavits and an affidavit of one of their booking agents, the Housers argue that Richard Fox visited the distributor defendants in December, 1980 and specifically disparaged the Colonial’s grossing potential. Brief of Appellants at 8; I App. 202A-210A. However, the affidavits relied on by the Hous-ers contain inadmissible hearsay, and cannot be considered in the context of a summary judgment motion. Fed.R.Civ.Proc. 56(e) (“supporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence_”). In contrast, Richard Fox testified in a deposition that he confined his conversations with distributors to the general assertion that his theaters were better than the Colonial. XIII App. 4161A-4163A. Even if the Housers’ affidavits were admissible, we agree with the district court that Richard Fox’s conduct was consistent with legitimate competitive conduct.
In addition, the Housers argue that Donald Fox’s practice of giving gifts to the distributor defendants supports their claim that Fox willfully maintained monopoly power. It is undisputed that giving gifts is a common practice in the motion picture distribution industry. VIII App. 2561A-2563A; 2675A-2676A; IX App. 2885A; IX App. 3604A-3606A. In fact, the Housers’ principal booking agent, Gary Feldman, gave gifts to personnel of the distributor defendants. There is also no evidence suggesting that the distributor defendants favored Fox because of the gifts. Therefore, we also agree with the district court’s holding that Fox’s practice of giving gifts does not support an inference of anticompetitive behavior.
Finally, in what they acknowledge is the heart of their willful monopolization case, the Housers argue that Fox overbooked films to prevent them from becoming a first-run film competitor. However, there is ample record evidence indicating that overbooking is a common practice throughout the movie industry. VIII App. 2705A-2706A; XIV App. 4516A-4517A; XX App. 6183A-6184A. Overbooking serves the legitimate competitive purpose of having a film on reserve in case the anticipated run of a film has to be cut short because it bombs; sometimes, overbooking results when a successful film is held over beyond its anticipated run. See I App. 221A; IX App. 2849A; XII App. 3878A. See also Movie 1 & 2 v. United Artists Comm., 681 F.Supp. 654, 659 (N.D.Cal.1987) (adjusting the length of a film’s run is a commonly accepted practice in the movie industry).
The Housers argue that the evidence presented of the existence and extent of Fox’s overbooking is sufficient to support the inference that the purpose of the overbooking was to willfully maintain monopoly power. Brief of Appellants at 21-22. We disagree. First, the extent of Fox’s overbooking is not great enough to support such an inference. For example, according to the Housers’ own calculations, during the 89 week period from January, 1981 until September, 1982, Fox did not overbook at all during 26 of the 89 weeks. Brief of Appellants at 20. In addition, in the context of Sherman Act § 1 conspiracy cases, the Supreme Court has emphasized that “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984). By analogy, we hold that since there is evidence that Fox’s practice of overbooking is consistent with sound business practices and permissible competition in this case, it does not, standing alone, support an inference of willful monopolization. Therefore, we will affirm the district court’s grant of summary judgment in favor of Fox concerning their alleged violation of section 2 of the Sherman Act.
B.
Next, we will address the Housers’ claim that each of the separate distributor defendants conspired individually with Fox to deny the Colonial first-run films in violation of section I of the Sherman Act. Section I of the Sherman Act makes illegal “[e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several states_” 15 U.S.C. § 1 (1982). In support of their conspiracy claim, the Housers have the burden of presenting direct or circumstantial evidence that reasonably tends to prove the alleged conspirators “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984) (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981)). In doing so, the Housers must show “(1) that the defendants acted in contradiction of their economic interests, and (2) that the defendants had a motive to enter into an agreement.” Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205, 208 (3d Cir.1980).
The Housers assert that each of the distributor defendants acted contrary to its economic interests by consistently choosing to license films to Fox theaters rather than the Colonial. They argue that “[o]n a purely objective basis, the Colonial was a better theater than any of the five Fox the-aters_” Brief of Appellants at 41. In support of this claim, the Housers point to the Colonial’s large seating capacity, elegant and well-maintained condition, and its location in a nice section of downtown in contrast to the alleged “dark and dingy” quality of the narrow suburban twin theaters and the downtown theater owned by Fox. Brief of Appellants at 5-6. In addition, they cite the testimony of a former Twentieth Century Fox employee who stated that he knew of no reason why a picture would not do as well at the Colonial as at the Fox suburban theaters. XIV App. 4579A-4580A. Therefore, the Housers argue that it was in the economic interest of each distributor to encourage greater exhibitor competition in Lebanon by licensing films to the “superior” Colonial.
As we discussed previously, the decision to license a picture to one theater rather than another is based on a complicated subjective estimation of a theater’s grossing potential. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 162-64, 68 S.Ct. 915, 931-32, 92 L.Ed. 1260 (1948); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 882-83 (8th Cir.1978). Consequently, courts have consistently recognized that motion picture distributors have broad discretion to make licensing decisions based on their own independent judgments. Paramount Film Distribution Corp. v. Applebaum, 217 F.2d 101, 124 (5th Cir.1954), cert. denied 349 U.S. 961, 75 S.Ct. 892, 99 L.Ed. 1284 (1955); Universal Amusements Co. v. General Cinema Corp., 635 F.Supp. 1505, 1514-16 (S.D.Tex.1985). Such factors as a proven track record of high box office receipts and an unblemished payment history are as important as the seating capacity or aesthetic qualities of a theater when estimating its grossing potential. See Admiral Theatre Corp., 585 F.2d at 885; Universal Amusements Co., 635 F.Supp. at 1517.
It is the Housers’ burden to present sufficient evidence to support their claim that the distributor defendants acted contrary to their economic interests in this case. They “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. at 588, 106 S.Ct. at 1357 (quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984)). However, the Housers point to just a few of the many factors that enter into a distributor’s estimate of grossing potential in support of their claim that the Colonial is a better theater than any of the Fox theaters, while ignoring other important factors. For example, both the magistrate and the district court found that the box office receipts for first-run films were consistently higher at the Fox theaters than the Colonial. I App. 29A, 70A-71A. In addition, there is evidence that two of the distributors had problems collecting money from the Housers. X App. 3129A, 3132A-3134A; VII App. 2217A. In light of the broad discretion that must be given to film distributors in making complex licensing decisions, we hold that there is not enough evidence in this record to permit a factfinder to conclude that the distributor defendants acted contrary to their economic interests by licensing films to Fox rather than the Hous-ers.
Even if we were to assume that the defendant distributors acted contrary to their economic interests, the Housers failed to show that the distributor defendants had a motive to conspire individually with Fox. The Housers allege that the defendant distributors were motivated to conspire with Fox because they feared that Fox might use its “circuit power” and refuse to do business with them throughout southeast Pennsylvania, Maryland and Delaware. The only evidence offered in support of this allegation is the inadmissible hearsay related to Richard Fox’s visit to the distributor defendants which cannot be considered by this court, supra p. 13, and the fact that Fox owned 81 screens in three states. We agree with the district court’s finding that the Housers have not presented any evidence that Fox used circuit power to coerce any of the distributor defendants in their licensing decisions. I App. 30A. Therefore, we will affirm the district court’s grant of summary judgment in favor of both Fox and the distributor defendants related to their alleged separate conspiracies in violation of section 1 of the Sherman Act.
C.
Finally, even if the Housers had been successful in substantiating some antitrust violation, they still must present sufficient evidence to support their claim that they suffered antitrust injury. Clayton Act, 15 U.S.C. § 15 (1982); see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (“[pjlaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” (emphasis in original)). The district court found that such factors as the Colonial’s downtown location, the Housers’ inexperience and indebtedness, and a track record of poor box office receipts and missed payments of rental fees supported a finding that the Housers did not suffer antitrust injury in this case. However, since the Housers failed to meet their burden of presenting sufficient evidence of an antitrust violation, we need not address this issue.
III.
In summary, the Housers failed to present sufficient evidence in support of their claim that Fox willfully monopolized first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. In addition, they failed to present sufficient evidence in support of their claim that the defendant distributors acted contrary to their economic interests, or had a motive to conspire with Fox to restrain trade in violation of section 1 of the Sherman Act. Therefore, we will affirm the order of the district court granting summary judgment in favor of all the defendants.
. In film distribution parlance, "first-run” refers to the first exhibition of a film in a given geographic area. Where a distributor re-releases a film after the passage of time, its first showing on re-release in a given geographic area is also considered a first-run. "Sub-run” refers to the exhibition of a film in a given geographic area after its first-run.
. Following their initial purchase of the Colonial in August, 1979, the Housers continued to operate the theater on a sub-run basis on weekends only. In the winter of 1980, they closed the Colonial completely for two months. After resuming sub-run weekend operations in March, 1980, the Housers began to exhibit first-run pictures on a full-time basis in May, 1980.
. The Key Drive-In located outside downtown Lebanon played both first-run and sub-run movies but was only open from the late spring to early fall. The State Theater located in downtown Lebanon primarily played x-rated films.
.The distributor defendants include the following companies and individuals: Columbia Pictures Industries, Inc. and Abraham A. Dortheimer, its Philadelphia Branch Manager; Universal Film Exchanges, Inc. and Pete Cicotta, its Branch Manager; Warner Brothers Distributing Corporation and Frank Carroll, its Branch Manager; AVCO Embassy Pictures Corp.; Filmways Pictures, Inc.; Twentieth Century-Fox Film Corporation and Louis Korte, its Branch Manager; Paramount Pictures Corporation; and United Artists Corporation. The original complaint also named Buena Vista Distribution Co., Inc. and Harvey Schwartz, its branch manager, as defendants, but the case against them settled after the entry of the magistrate’s report and recommendation.
. A film "bombs” when its box office receipts fall far below the weekly gross receipts anticipated by both the distributor and exhibitor.
. The Housers argue that this period included the "very successful exhibition” of the film "Hangar 18.” Brief of Appellants at 7. However, the record reveals that total daily attendance during the 17-day run of Hangar 18 ranged from just 7 to 255, including a substantial number of children’s admissions at less than half-price, and exceeded 150 adult admissions on only three days. Ill App. at 770A-773A.
. During this period, the Colonial exhibited its most successful film in terms of box office receipts — "The Best Little Whorehouse in Texas." However, because the Housers offered a $20,000 guarantee in an attempt to outbid Fox’s offer of a $15,000 guarantee, the Colonial still lost money on the picture.
. At the time the theatre was closed, the Colonial had already booked ‘The Sword in the Stone" for Christmas exhibition. Dennis Houser has identified five other films which he wanted to exhibit in the fall of 1982, but as to which he was unable to get any response from the distributors. As to at least two of the five, the distributors involved claimed never to have received an offer from the Housers’ booking agent, Gary Feldman. Mr. Houser has acknowledged that he was having serious difficulties with Feld-man’s performance in the summer of 1982. As to a third such film, Mr. Houser acknowledges that Feldman told him that the Colonial’s offer had been rejected, that the distributor had asked for rebids and that Feldman had neglected to submit a rebid. Mr. Houser has identified at least another forty first-run films available for distribution in September, October, November and December, 1982, which had not been awarded in Lebanon as far as he knew on September 10, but as to which he made no inquiry or offer. See I App. 45A.
. The Clayton Act, as amended, provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue ...” in federal district court. 15 U.S.C. § 15(a). The Housers initiated this action pursuant to the Clayton Act to recover damages for alleged violations of sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1-2.
. Fox argues that the Housers failed to meet their burden of coming forward with evidence confining the geographic market to Lebanon, Pennsylvania. Brief of Appellee Fox at 18 n. 6. We disagree. The record supports the conclusion that patrons of first-run films in Lebanon primarily attend Lebanon theaters. I App. 123A, 153A, 216A. The fact that there is evidence that a minority of customers might travel to Harrisburg, Lancaster or even Philadelphia to attend a picture unavailable in Lebanon is not enough to support Fox’s contention that the relevant geographic market should be expanded to include those cities as a matter of law. See Lansdale v. Philadelphia Electric Co., 692 F.2d 307, 311 (3d Cir.1982) (“definition of the relevant geographic market ... is a question of fact to be determined in the context of each case in acknowledgment of the commercial realities of the industry under consideration.").
. In United States v. Grinnell Corp., the Court held that an 87% share of the relevant market (central station alarm service) constituted monopoly power, 384 U.S. at 571, 86 S.Ct. at 1704, and in American Tobacco Co. v. United States, the Court held that "over two-thirds of the entire domestic field of cigarettes, and ... over 80% of the field of comparable cigarettes" constituted “substantial” monopoly power. 328 U.S. 781, 797, 66 S.Ct. 1125, 1133, 90 L.Ed. 1575 (1946) (cited in Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704).
.Fox argues that evidence in the record of Colonial’s success in exhibiting some first-run films demonstrates that Fox did not have the power to set prices or exclude competition in Lebanon. Brief for Appellees Fox at 18-22. We agree that a genuine issue of material fact exists as to whether Fox has monopoly power over the exhibition of first-run films in Lebanon. However, based on our review of the record, we cannot rule that Fox lacks monopoly power.
. In support of their argument, the Housers' point to the fact that “Fox submitted no affidavits or testimony" which directly refutes their claim that the purpose of Fox’s overbooking was to deny the Colonial first-run films. Brief of Appellants at 20-21. However, Fox is not required to refute the affirmative elements of the Housers’ section 2 monopoly claim; instead, they need only point out the insufficiency of the Housers’ evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Relying on Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), the Housers also argue that summary judgment is inappropriate in this case because Fox’s motives and intent are critical to a section 2 monopoly case. However, while commenting on Poller, the Supreme Court recently emphasized that ”[w]e do not understand Poller ... to hold that a plaintiff may defeat a defendant’s properly supported motion for summary judgment ... without offering any concrete evidence from which a reasonable juror could return a verdict in his favor_ Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
Question: Are there two issues in the case?
A. no
B. yes
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.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Plaintiff-Appellee, v. PUBLIC SERVICE COMMISSION OF TENNESSEE and the State Board of Equalization of Tennessee, Defendants-Appellants.
No. 17180.
United States Court of Appeals Sixth Circuit.
Feb. 14, 1968.
McCree, Circuit Judge, dissented.
Milton P. Rice, Asst. Atty. Gen., Nashville, Tenn., for appellants; George F. McCanless, Atty. Gen., State of Tennessee, Eugene Ward, Gen. Counsel, Public Service Commission, State of Tennessee, Nashville, Tenn., on brief.
David M. Keeble, Nashville, Tenn., for appellee; W. L. Grubbs, Philip M. Lanier, Louisville, Ky., Hooker, Keeble, Dodson & Harris, Nashville, Tenn., on brief.
Before PECK, and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
McALLISTER, Senior Circuit Judge.
This action was brought by the Louisville and Nashville Railroad Company against the Public Service Commission of Tennessee, and the Tennessee State Board of Equalization, and others, to enjoin the certification and enforcement of tax assessments against the Railroad Company.
After an extended hearing, Judge William E. Miller held that the record of the case established a systematic and long-standing policy of the Public Service Commission to assess the Railroad’s property within the state at a much higher percentage of actual cash value than the custom of local assessors in assessing other property at a smaller fraction of actual cash value, and resulted in violation of the Tennessee Constitution and statute, and denial of equal protection of the plaintiff’s rights under the Fourteenth Amendment of the Federal Constitution. The court held that although, theoretically, the Railroad Company could pursue certain procedural avenues in the state courts, nevertheless, the state law would bar relief to the Railroad Company unless it could prove that it had been assessed at more than actual cash value, which it could not do.
Finding that the Railroad Company had been substantially over-assessed in relation to other taxpayers in the state, and that relief would be denied it unless the defendants were enjoined from certifying or enforcing the assessment, the court so enjoined the defendants, without prejudice to the State Board of Equalization of Tennessee, to rehear and reconsider the assessment, so that it might be made to conform with the requirement of equal protection of the law under the Fourteenth Amendment; and held that, pending such redetermin-ation, the case would be retained on the active docket, with either party having the right to apply to the court, at any time, for other or additional orders.
This controversy involving the constitutional rights of the appellee and the rights of the State of Tennessee was decided by Judge Miller in a compendious opinion setting out all the pertinent facts and discussing the applicable law as well as annexing to his opinion copious appendices setting forth the provisions of the Tennessee Constitution and the Tennessee Statutes relevant to the issues. One of the detailed appendices sets forth the actual tax rates for the various counties of the state, the ratio of the assessed to actual value in the counties, and the effective tax rate in each of the counties.
The foregoing is an outline of the case, the issues, and decision of the court in a controversy which is important, complex, and of great interest, and which was ably presented by arguments and briefs on appeal by counsel on both sides.
The gist, then, of appellee’s contention is that by the assessment and taxation of appellee’s property through the method adopted by the Public Service Commission, appellee suffered unlawful discrimination in violation of its rights under the Fourteenth Amendment, commanding equality of treatment.
Appellee’s property, according to Article 2 of the Constitution of Tennessee, and all other property in Tennessee, are required to be taxed at their actual cash value, and no one species of property, from which a tax may be collected, shall be taxed higher than any other species of property of the same value. The Tennessee Constitution also provides that the legislature shall tax all property according to its value, upon the principles established in regard to state taxation. The Tennessee legislature has provided that all property of every kind shall be assessed at its actual value and, with regard to railroad property, that the Public Service Commission shall assess all such property at its actual cash value.
It is easy enough to see how, if one kind of property is assessed at a different rate of cash value than another kind of property and that they are both taxed on the basis of such assessments, the two kinds of property are not taxed according to their actual tax value. If one kind of property is taxed at 10% of its actual value, and another kind of property is taxed at 90% of its actual value, any intelligent person could perceive the inequality of the basis of such taxation, and the injustice of it.
But appellant cites to us, and relies upon, the ease of Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, to support its contention that the assessment and taxation of appellee railroad in this case is not in violation of the latter’s rights to the equal protection of the laws. In the Browning case, the Supreme Court, speaking through Mr. Justice Frankfurter, said:
“The Railway first asserts that it is a victim of such invidious discrimination in the administration of Tennessee’s tax statutes as is proscribed by the guaranty of ‘the equal protection of the laws.’ The claim is founded upon the following circumstances. As we have already indicated, there are two separate modes for the assessment of property in Tennessee, each with its distinctive procedure. The property of public service corporations is assessed by the Commission; all other property by local officials. This broad classification, separating two very different types of property, has been reflected, according to petitioner’s contention, by a corresponding difference in the bases of assessment. For more than forty years, so it was urged before the courts of Tennessee and later here, the county assessors have systematically valued property at far less than its true worth, while utility and railroad properties have been assessed by the Commission at full value. This systematic differentiation, petitioner claims, has been continuous and statewide in its operation; has been ‘repeatedly brought to the attention of the General Assembly of the State of Tennessee’; has been left uncorrected by that body; and until the present case, so far as we are informed, has been unchallenged. In support of its claim the Railway adduced official and unofficial reports as well as a volume of affidavits from local assessing officials in the counties through which its lines run — all to the effect that locally assessed property was undervalued. The issue of forbidden discrimination was thus squarely raised below. But the Tennessee Supreme Court did not deem petitioner’s evidence sufficient to overcome the presumption that in the exercise of its reviewing function, the Board had equalized assessments in accordance with the command of state law. We should be reluctant on such a question to reject the state court’s determination as without foundation, and there is not enough in the record to warrant its repudiation.”
In his opinion in the instant case in the district court, Judge William Miller distinguished the Browning case by clearly pointing out that the Tennessee Supreme Court had never passed upon the issues adjudicated in the district court, and that there was no question of rejecting the state court’s determination in the matter. He also referred to the Constitution of the State of Tennessee and the relevant tax statutes which prohibited the classification of property for tax purposes or the valuation of any property at less than its actual cash value. In the Browning case, after deciding the single issue involved, Mr. Justice Frankfurter went on to state that even if the ground taken by the state supreme court in that case was “a strained evasion of the differentiation between utility property on the one hand and all the rest on the other, we should still find no denial of the equal protection of the laws.” This statement was, as Judge Miller pointed out, clearly dicta, and moreover was not pertinent to the instant case, which was not an attempt to overrule the state supreme court. Further, Justice Frankfurter stated that, “Since, so far as the Federal Constitution is concerned, a state can put railroad property into one pigeonhole and other property into another, the only question relevant for us is whether the state has done so. If the discrimination of which the Railway complains had been formally written into the statutes of Tennessee, challenge to its constitutionality would be frivolous. If the state supreme court had construed the requirement of uniformity in the Tennessee Constitution so as to permit recognition of these diversities, no appeal could successfully be made to the Fourteenth Amendment.” (Emphasis supplied.) In the instant case there has been no discrimination formally written into the statutes of Tennessee, nor had the Supreme Court of Tennessee construed the requirement of uniformity in the Tennessee Constitution so as to permit recognition of these diversities. Hence, these statements in the Browning case have no relevance or controlling effect in the instant case. Furthermore, in the Browning case, Justice Frankfurter emphasized that:
“It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.”
Regardless of what may be meant by the “dead words” of the written text of either constitution or statute, it is to be emphasized, as Mr. Justice Frankfurter has himself emphasized it, that “[sjettled state practice cannot supplant constitutional guarantees”; and, in the instant case no state practice can supplant the constitutional guarantee in Tennessee that all property of every kind shall be assessed at its actual value. We are further referred to Mr. Justice Frankfurter’s statement in the Browning case that “ [I] f the state supreme court chooses to cover up under a formal veneer of uniformity the established system of differentiation between two classes of property, an exposure of the fiction is not enough to establish its unconstitutionality. Fictions have played an important and sometimes fruitful part in the development of law.” However, we are not here concerned with any such fiction. For the Supreme Court of Tennessee has not chosen to cover up under a formal veneer of uniformity an established system of differentiation between two classes of property; and there is, accordingly, no fiction, to be' either concealed or exposed, that could have any bearing upon constitutionality, or that warrants our consideration.
In retaining the case on the active docket of the district court, without prejudice to the right of the State Board of Equalization to rehear and reconsider the assessment in this case, so that it may be made to conform with the requirements of equal protection of the law under the Fourteenth Amendment, Judge Miller gave full opportunity to the State of Tennessee to secure a just adjudication of its rights.
In accordance with the foregoing, the judgment of the district court is affirmed for the reasons set forth in the opinion of Judge Miller, reported in 249 F.Supp. 894.
. A fiction of law is always founded in equity (In fictione juris semper subsistit aequitas). Blackstone’s Commentaries, edited by William Carey Jones, Book III, p. 1553.
Bentham poured ridicule on legal fictions wherever he met them. (See Maine’s Ancient Law, London, 1894, p. 27.)
Pound, in his great work on jurisprudence says that while fictions have played an important part in legal history, “we must not forget that they are a clumsy device appropriate only to periods of growth in a partially developed political organization of society in which legislation on any large scale is not possible. They are not suited to later times and developed systems. In a period of growth, when ideas are few and crude, they enable a body of law to be molded gradually, without legislative action, to meet immediate wants as they arise and to conform to the requirements of cases as they arise.
# $ * $ $
“After a certain stage of legal development, on the other hand, fictions retard growth and clog development. In a rational age, an age of substance rather than form, when legal doctrines are logically worked out and a body of learned jurists is at hand to apply and develop them, fictions may confuse and conceal the substance of legal precepts. In a sense they were devised to conceal the substance when the substance was not regarded as of legal consequence. They may operate still to conceal the substance after later ideas have made the substance almost the only thing of legal consequence.” Jurisprudence, by Roscoe Pound, Vol. III, pp. 465, 466. (West Publishing Company, St. Paul, Minn., 1949)
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_3_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
PARKER v. COMMISSIONER OF INTERNAL REVENUE.
No. 9792.
Circuit Court of Appeals, Ninth Circuit.
Aug. 20, 1941.
Adolphus E. Graupner and Louis Janin, both of San Francisco, Cal., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, S. Dee Hanson, and Carl Marold, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
The proceeding is for a review of a decision of the Board of Tax Appeals. It involves an asserted transferee liability on the part of the petitioner, Parker, under the provisions of § 311(a) (1) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev. Acts, page 569.
The case is a companion case to Tooley v. Commissioner, 9 Cir., 121 F.2d 350, decided June 10, 1941. The essential facts as found by the Board are as follows: For many years prior to March 1, 1934, James M. Botts was president of the American Marine Paint Company. Parker was vice-president. In 1922 Botts made a will containing a bequest to Parker, “as a mark of appreciation for his loyal and faithful service and friendship”, of 20 percent of the stock of the company “which shall stand in my name upon the books of said corporation at the time of my death.” On July 12, 1933, there were 1,980 shares of the capital stock of the company outstanding, of which 1,749 shares stood in the name of Botts and 204 shares in the name of C. M. Botts, his wife.' Botts and his wife had contemplated placing their stock in a joint tenancy with right of survivor-ship. On the date last mentioned the two surrendered their certificates, and certificates bearing that date were issued for 1,958 shares to J. M. Botts and C. M. Botts “as joint tenants with right of survivor-ship”. On March 1, 1934, Botts died testate.
Within a few days after his death his widow placed the certificates in the stock book marked “cancelled” and caused the 1958 shares to be issued to herself. On March 15, 1934, Mrs. Botts filed a joint income return of herself and husband for the year 1933. The Commissioner later assessed against the estate of Botts deficiencies in income taxes for that year. One of these assessments in an amount exceeding $16,000 remains unpaid. Notice of the deficiency was given to Parker and others as transferees of the estate of James M. Botts, asserting transferee liability.
The Board found Parker liable as a transferee on the basis of the following circumstances: In April, 1934, the will of James M. Botts, containing the bequest aforesaid, was filed for probate in the superior court of California and an executor was appointed. In the original inventory of the estate property in the hands of the executor was appraised at less than $2,-000, the stock in the Paint Company not being included. In 1936 an amended inventory was filed which included 1,749 shares which had been issued to Botts and his wife as joint tenants. The shares were appraised at a valuation in excess of $100 each. In the final account these shares were charged to the executor, and thereafter, on August 4, 1936, the superior court ordered final distribution of the estate, the decree providing for distribution to Parker of 390.5 shares and to the widow 1,358.5 shares. Parker formally acknowledged receipt of these shares. Two days after the entry of the decree of distribution the shares were divided in this manner: The certificates theretofore held by the widow were surrendered and new certificates issued to her and to Parker for the respective amounts specified in the decree. On the stub of the certificates which Mrs. Botts had caused to be issued to herself upon the death of her husband appears the notation “cancelled — issued by mistake”.
Long prior to Botts’ death Parker had been informed that he would receive 20 percent of the company’s stock when Botts died. At the time the shares were issued to Botts and his wife as joint tenants the two informed-Parker that he would still receive his 20 percent. After Botts died his widow told Parker that her husband’s wish would be carried out.
In Tooley v. Commissioner, supra, we determined that Mrs. Botts was not liable as a transferee of the stock, holding that under the California law she took as survivor of the joint tenancy, not as a transferee of her deceased co-tenant; and that since the California court, acting in probate, had authority to distribute only such title as existed in the decedent, its decree purporting to distribute the stock was not, as the Board of Tax Appeals supposed, an adjudication of the title. Further, that the distributees might show in a collateral proceeding that in fact the estate had no title. The ground covered in that decision need not be gone over again.
The burden was on the Commissioner to show transferee liability “at law or in equity”; and in respect of Parker such liability must be, found, if at all, in his status as a distributee of the estate of the taxpayer, James M. Botts. It is not contended that there was any liability otherwise. Parker was not an heir of Botts and there was no showing that he received the stock in compromise of any claim under the latter’s will. Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410, upon which the Commissioner relies, is not in point. Nor could he have taken pursuant to the will, for, as was held in the Tooley case, supra, Mrs. Botts’ title to the whole number of shares had become vested as of the time of the creation of the joint tenancy, and no shares stood in the name of Botts at the time of his death. It necessarily follows that Parker received his stock as a gift from Mrs. Botts, not as a transferee of property of the taxpayer. Notwithstanding the formality of the decree of distribution, Parker was free to show the true source of the title.
Reversed.
The statute provides a summary method of enforcing “the liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax * * * imposed upon the taxpayer by this title”. Subdivision (f) defines the term transferee as including “heir, legatee, devisee, and distributee.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_appbus
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
In the Matter of BROOKS & WOODINGTON, INC., Bankrupt. Appeal of CARNCROSS, SCHROEDER, STEIN, WILLIAMS, YOUNG & COMPANY, and David M. Johnson, C.P.A.’s.
Nos. 73-1119, 73-1120.
United States Court of Appeals, Seventh Circuit.
Resubmitted Nov. 5, 1974.
Decided Dec. 3, 1974.
Thomas G. Ragatz, James F. Lorimer, David F. Grams, Madison, Wis., for appellant.
Before CUMMINGS, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
These are consolidated appeals arising from bankruptcy proceedings and essentially involve the matter of the correctness of the disallowance of fees claimed by accountants and rendered for the trustee in bankruptcy for Brooks & Woodington, Inc.
The bankruptcy proceedings were initiated in 1965, first under Chapter XI of the Bankruptcy Act but shortly thereafter becoming a regular bankruptcy administration case. William T. Rieser was appointed as trustee and thereupon petitioned the referee for authority to hire an accountant and “to secure a certified audit, internal and external, so that the trustee may have and use full and comprehensive financial reports on the assets and liabilities of the above bankrupt corporation.” An order was entered authorizing the retention requested. However, the accountants selected apparently developed conflicts of interest and in March 1966, an order was entered authorizing the trustee to retain Gordon, Carncross & Associates and David M. Johnson, C.P.A., one of its partners, the present appellants, to bring the books up to date and to audit the same, “at the compensation rate set forth in the attached petition.”
The petition on which the referee’s order was based had indicated that Johnson would work one week on the books and would then estimate the cost and time to accomplish the task at hand. The schedule of fees specified $12.00 per hour for certified public accountants, $9.00 per hour for senior accountants, and $7.00 per hour for junior accountants. The appellants submitted in response to the order -based upon this petition their recommendations as to the work to be done and estimated the cost to be $7,500.00.
The trustee then filed a petition requesting authorization to proceed to perform the work of bringing the books up to date and auditing the same. The referee entered an order authorizing the retention of the appellants for the purposes indicated “at the same rate of compensation as previously ordered.” In addition, however, the order extended the authorized services to include auditing the books of subsidiary, affiliated and related corporations, partnerships, and trusts of the corporation and of Neil A. Woodington.
The picture of the situation which then developed, and which appraisal is not refuted in the record before us, as presented by the appellants is as follows: Appellants then proceeded with the tedious and enormously time-consuming task of reconstructing the records. The evidence disclosed that there was no conceivable way the total extent of the necessary services could have been originally estimated, without some great intimacy into the affairs of the bankrupt and all related parties, as the expanding chain of complexity continued to unfold as the interrelationships with other entities were explored. What was finally found to be essential, was the reconstruction from scratch of records from as far back as nine years for the bankrupt and ten related corporations, partnerships, and trusts. This reconstruction was based upon an analysis of incomplete, inaccurate, misleading, and fundamentally unsound records through third party records (e. g., bank records) relating to thousands of interwoven accounting transactions. The trustee in bankruptcy for Allied Development Corporation whose affairs were grossly intertwined with those of the bankrupt and who was by far its largest creditor, testified that the status of the records as to the intercompany account “were a mess. . . . hopelessly entangled.” The testimony further disclosed that the principals of the bankrupt and its related entities engaged in extensive check kiting and other transactions and fund transfers between entities that made their tracks nearly impossible to follow, probably purposely so. Appellants’ expert witness, Gordon Volz, a prominent and experienced C.P.A., testified that he had never seen a worse mess and the Trustee stated he did not believe “anything could have beat” the situation for complexity. It is now common knowledge and a matter of public record in this community that the tangled web spun by Mr. Woodington and his associates deceived many people and precipitated the extensive losses involved in this and related bankruptcy proceedings, and that Mr. Woodington went to prison after conviction of charges pertaining to his activities in connection with an affiliated corporation.
It further appears that bills were submitted regularly and these bills were accumulated in the referee’s file. Periodic payments with the approval of the referee were made to the appellants totaling some $34,000.00. At no time was there any limitation of the authority of the trustee to continue obtaining the services of the appellants. The trustee, in reliance upon the authority of the 1966 orders, continued to require the services of the appellants in attempting to reach solid ground in what was apparently a bottomless pit. There appears to be no claim of lack of quality of the work or that any of it was performed unnecessarily or in bad faith. When the services were substantially completed, the referee in letters and oral communications indicated an unfavorable attitude toward the payment of the remaining unpaid bills. The appellants thereupon petitioned the district court for an order to transfer the matter of the disposition of the claim for fees to another referee. This was denied and is the basis of appeal No. 73-1119. We do not, because of the disposition of appeal No. 73-1120, need to determine this issue.
When the matter came before the referee who had issued the original orders, the total of the unpaid accounting claims was approximately $23,000.00. Upon determining that the amount remaining for distribution to unsecured creditors was insufficient for any payment to that class of creditors if the balance of the accountants’ claims was allowed, the referee denied payment of the remainder of the claim. This was affirmed by the district court and this appeal followed.
The delay in the disposition of this appeal is regretted. However, the case as it is before us is an eloquent testimonial to the value of the adversary system. In April 1973 no brief in opposition to the appellants’ brief having been filed, this court ordered that the parties show cause why the appeal should not be submitted for decision without the filing of a brief in opposition by the appellees. No briefs were filed and in December 1973 it was ordered that the appeal be submitted to the court for decision without oral argument and without the filing of an appellees’ brief pursuant to Rule 2 of the Federal Rules of Appellate Procedure.
Again, however, because of the desirability of having opposing views presented to an appellate court, an order was entered in September 1974 notifying the trustee in bankruptcy and any other known interested parties that the court would accept opposing briefs.
On two occasions the trustee in bankruptcy by letter advised this court that he did not intend to file a brief as he fully supported the position of the appellants. A brief was filed pursuant to the September 1974 order by the trustee in bankruptcy for Allied Development Corporation which was the principal creditor of the present bankrupt. This brief was filed notwithstanding that upon the occasion of the hearing on fees before the referee, the trustee of Allied stated that he did not take a position either of supporting or opposing the fees in that he had an obligation as an attorney and trustee of Allied Corporation but also he stated he was “a decent human being and wanted to see that justice was done.”
Because of the policy underpinnings of this case, despite the fact that it was ordered considered in December 1973 without the filing of an appellees’ brief and despite the belatedness of the filing of the opposition brief, we have in rendering this opinion given full consideration to the brief in opposition as well as the opinions of both the referee and the district court. Although the case is being disposed of pursuant to Rule 2 without oral argument, it is not being handled on what amounts to a default basis.
In so doing, however, we also note the lack of contravention of appellants’ assertions as follows: The evidence disclosed that without such extensive accounting services the assets and obligations of the bankrupt could not have been ascertained, and but for such ascertainment the Trustee could have not realized the approximately $700,000.00 of assets actually collected, or determined the correct and legitimate claims. The existence of multiple security devices on various properties necessitated extensive accounting merely to straighten out the secured claims. The Trustee testified that the secured creditors would not have been paid in full without the accounting services.
The referee in his dispositive opinion stated he had “no reason to doubt that the subsequent accounting work of Carn-eross was done expertly and in good faith.” The motivational factor of the referee’s decision thus appears not to be that some benefit from the services was not realized by creditors, albeit secured ones, nor that the services were make-work but rather that an allowance of the claimed fees would mean, insofar as general creditors were concerned, administration expenses would consume the available estate, a result that might have been reachable in a Dickens’ novel but to be eschewed in bankruptcy court.
However, by the disposition the referee did reach, the general creditors will receive a 3.61% dividend. We have difficulty in regarding this as being little else than a token and as such adding no real deference to what has sometimes been termed the economical spirit of the bankruptcy act.
The district court in its opinion stated that “[i]t would not have been unreasonable ... if the referee had concluded that the petitioner’s entire claim be allowed,” but further the district court declined to conclude that it was unreasonable for the referee “to limit the petitioner to a fee which was about five times as great as petitioner’s initial estimate, and which equalled the sum estimated by petitioner after it had been deeply involved in the assignment for more than 10 months.”
While we agree with the district court that the scope of review of the referee’s decision is of limited scope and that it should not be overruled absent of error of law or a clearly erroneous finding of fact, we are of the opinion that the law here has been erroneously applied.
We also agree with the contention of the principal creditor asserted on this appeal that an appellate court not be quick to revise an allowance or disallowance of fees involving the exercise of discretion of the bankruptcy court, which has been concurred in by the district court, 3 Collier on Bankruptcy, Sec. 62.12(4), p. 1488. Our reluctance, inter alia, has been demonstrated by the continuing attempts to secure views in opposition to the appellants’ position and we have not hastily or lightly reached the decision we have but we are bound to do so as a matter of law.
Order No. 45, General Orders in Bankruptcy, provides in relevant part:
“No accountant shall be employed by a trustee . . . except upon an order of the court expressly fixing the amount of the compensation or the rate of measure thereof . . . ”
Here the trustee was authorized to have the services performed which were in fact performed at his direction. Those services were performed over a number of years time at the rate fixed by the court. There is no indication that the rate increased as we are aware professional hourly rates did during the period of time. At no time did the referee, as he readily could have, amend or rescind the standing order for the retention and utilization of the services. The district court would place the burden on the accountant to protect his rights by requesting a maximum level of compensation be inserted in the authorizing order. Order 45, however, is in the alternative of the amount of compensation or the rate or measure. Here the latter course was chosen and remained in ef-feet at all pertinent times. We do not read the Order as mandating both the rate and the maximum even though the referee presumably could impose in the authorizing order both controls.
The district court also would place the duty on the accountant, when it becomes apparent that cost estimates are to be exceeded, to secure the express approval of the referee before continuing work. This duty has greater arguable merit and it is noted here that the original estimate was woefully inadequate. However, the original estimate was based only upon the books of the bankrupt corporation and even upon those following an abbreviated period of one week of examination. The order subsequently entered extended the scope of the inquiry as we have noted and when despite the mounting costs, which were no secret to the referee or trustee, the trustee continued to require the accounting services, we do not find that duty arose to go to court to see if the unamended and rescinded order of authorization was still effective, particularly when the excess billings had been routinely paid.
We adopt the reasoning of the court in Killoren v. Boyd, Cronk & Co., 119 F.2d 1, 3 (8th Cir. 1941) in allowing compensation to the appellee accounting firm:
“He [the trustee] should not have permitted the firm to continue rendering services which he knew, or ought to have known, were being performed with the expectation that they would be paid for at the rate fixed by the court.”
In Killoren, as in the present case, a time-equated rate was fixed. On the other hand, in that ease there is some suggestion that the work or at least some of it was permissively performed insofar as the trustee was concerned while here the request for continuing services was that of the trustee. The Killoren trustee opposed the additional fees, here the trustee heartily approves of payment. We do note another difference between the two cases as we find no indication that in Killoren the payment of the fees would have eliminated a dividend to general creditors. Nevertheless, the court in Killoren did recognize the importance of economical administration as a factor for consideration :
“While it is of great importance that the expense of administering an insolvent estate should be kept to a minimum, it is equally important that those administering such an estate should live up to the letter and the spirit of engagements lawfully made with those whom they employ.” 119 F.2d at 4.
Counsel for the principal creditor in its brief argues that Killoren is not controlling. We agree but have accepted its reasoning. Counsel also argues that the reasoning should not be followed because Killoren involved a Chapter X Reorganization where by analogy the payment of the fee was in an attempt to keep the patient alive whereas in the present case there was a decedent and the fees were in the nature of funeral arrangements. While this is an interesting analogy, it fails to persuade us as the apparent purpose of the fees here obviously was to have an accountant work through the morass in an endeavor to secure and recover greater assets for ultimate distribution. In either case the reasoning of Killoren is applicable.
Turning to the question of whether the equality of importance continues in the situation where an administrative cost would prevent any general credit distribution, we are satisfied that it may, and upon the particular facts of the case before us, it does do so. In the present area of consideration, only general guidelines may be set, bearing in mind the spirit and purposes of the bankruptcy act and that the bankruptcy court within the jurisdiction granted by the Act operates as an equity court and upon equitable principles. See Southern Bell Telephone & Telegraph Co. v. Caldwell, 67 F.2d 802 (8th Cir. 1933).
Essentially, in this type of case, the particular facts of the ease, on a case-by-case approach, will control. On the narrow facts of the present case, and we do not determine whether it should have any wider application, we hold as a matter of law that the desire for some dividend to creditors, if that dividend is only of a token nature, should not override the commitment lawfully made with those employed on specific terms by the bankruptcy court. We do not agree with the district court in its suggestion that there was any ambiguity in the present commitment.
As stated by the court in Jacobowitz v. Double Seven Corp., 378 F.2d 405, 408 (9th Cir. 1967), “[w]e think that the economical spirit of the Bankruptcy Act does not require, nor justify, reducing a requested fee where, as here, by all other proper standards it is a fair and reasonable one.”
Finally, as we have noted hereinbe-fore, the claimant with the largest claim failed in the bankruptcy court to take a position in opposition of the allowance of the claim and as noted by the district court, “[n]o objections to the fees requested were filed.”
It is not our intent in any way to find fault with the referee who displayed a conscientious and commendable devotion to an important concept of bankruptcy administration; it is merely that we find that the concept, on the facts of this particular case, must give way to the court commitment.
In the original brief of the appellants, they sought “full allowance of the Appellants’ requested unpaid fees.” No mention was made of interest. In the 22 page reply brief filed in response to the belated brief of the principal creditor, the subject of interest was first mentioned as a part of the final paragraph of the reply brief:
“Thus, it is respectfully requested that the Opinion and Order from which this appeal was taken be reversed, and that the Appellants be determined to be entitled to the full fees requested, plus interest thereon and their costs and disbursements on this appeal.”
The brief contains no discussion of the law which might be applicable to the disposition of the interest issue.
There has been an informal indication that the assets here involved have been invested in interest-bearing securities or an interest-bearing account pending the outcome of this appeal. If this is indeed the fact, we recognize the existence of some equities for the allowance of interest. In general, where a fund in litigation is deposited in court, interest may be recoverable to the extent that the fund earns interest during such time. 47 C.J.S. Interest § 54.
This is not the ordinary case, however, of a fund deposited in court. This is a bankruptcy proceedings and rules of ordinary application may, and often do, give way before the Act. Our own examination of bankruptcy law has reflected no authority precisely in point. We find help, however, in the analogous situation of the allowance of interest on claims filed in bankruptcy. See Collier on Bankruptcy, 14th Ed. ft 63.16 (1972). Even though the claim is interest-bearing, “to cope in the most convenient and equitable manner with the debtor’s apparent insolvency,” the “law selects as decisive the date of the filing of the petition in bankruptcy,” and “disregards, for the purpose of liquidation, interest accruing beyond that date.” Id. at 1858. Of course, a different situation might exist if the estate were solvent. 8A C.J.S. Bankruptcy § 422.
In the light of the generally prevailing bankruptcy rule applicable to interest-bearing claims and particularly in view of the manner in which the claim for interest has been asserted in this particular appeal, we hold that the appellants are not to be allowed interest on the amount of their claim. They will, as the prevailing party, be entitled to costs of appeal.
Accordingly, the judgment affirming the referee’s action with regard to the accountants’ fees claimed by the appellants is vacated and the cause is remanded for the entry of an appropriate order allowing the claim in full.
Reversed and remanded.
. “[W]lien he came to Westminster Hall, we found that the day’s business was begun. Worse than that, we found such an unusual crowd in the court of chancery, that it was full to the door, and we could neither see nor hear what was passing within . . . It appeared to be something interesting for every one was pushing and striving to get nearer . . . ‘Mr. Kenge,’ said Allan, appearing enlightened all in a moment. ‘Excuse me, our time presses. Ho I understand that the whole estate is found to have been absorbed in costs?’ ‘Hem! I believe so,’ returned Mr. Kenge. ‘Mr. Vholes, what do you say?’ T believe so,’ said Mr. Vholes. ‘And that thus the suit lapses and melts away?’ ‘Probably,’ said Mr. Vholes.”— Charles Dickens, Bleak House.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_appel1_7_4
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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 citizenship of this litigant as indicated in the opinion.
Annette HEYMAN, Individually, et al., Plaintiffs-Appellees, v. Robert S. KLINE et al., Defendants-Appellants.
Nos. 1057-1060, Dockets 35418, 35419, 35625, 35626.
United States Court of Appeals, Second Circuit.
Argued July 15, 1971.
Decided Jan. 3, 1972.
As Amended on Rehearing March 2, 1972.
Oakes, Circuit Judge, dissented and filed opinion.
Jon O. Newman, Hartford, Conn., for plaintiffs-appellees.
J. Daniel Sagarin, Bridgeport, Conn., for plaintiffs-appellees on petition for rehearing.
John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., and William B. Rush, of Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for defendants-appellants.
Before FRIENDLY, Chief Judge, and LUMBARD and OAKES, Circuit Judges.
LUMBARD, Circuit Judge:
Robert Kline appeals from a judgment of the District Court for Connecticut which held that defendant Kline, a citizen of Florida, had breached his employment contracts with plaintiffs, all citizens of Connecticut, and that a July 16, 1968, assignment to Kline, among others, by Annette Heyman of an option in a piece of Tampa, Florida, real estate never became effective. The court awarded plaintiffs $40,452.58 damages for breach of the employment contracts, declared that Kline was entitled to no interest in the Tampa real estate either under the July 16 assignment or as consideration for his employment services, and enjoined him from bringing any suits or making any claims regarding the property.
Kline and his attorneys, Harvey B. Oshins and John R. Bush, also appeal from that part of the court’s judgment holding them in contempt for filing suit in the Hillsborough County Court of Florida to determine title to the Tampa land after the district court had issued a temporary restraining order (TRO) enjoining such a suit.
We hold that Kline was improperly denied a jury trial on the questions of whether he had breached his employment contracts and whether he was entitled to punitive damages as a result of Mrs. Heyman’s alleged breach of her fiduciary relationship with him. The judgment that Kline had no interest in the Tampa real estate also is reversed inasmuch as its determination will depend upon questions first passed upon by the jury.
The facts of this case, undisputed except where otherwise noted are as follows:
Robert Kline was employed by Lazarus Heyman, Mrs. Heyman’s husband and testator, pursuant to a written contract of March 31, 1968. The contract provided that Kline would work exclusively for Heyman in the development of real estate, particularly a 73-acre parcel of Tampa, Florida land on which Heyman had an option. In consideration for his services, Kline was to receive $20,000 per year, and a bonus if Heyman determined that one was appropriate. Kline was entitled to use the bonus money to invest as a partner to the extent of 15% in any of Heyman’s real estate ventures.
In May, 1968, Lazarus Heyman died. Shortly thereafter, Kline and Mrs. Hey-man orally agreed to continue Kline’s employment contract. On June 15, 1968, and again on July 15, 1968, Mrs. Hey-man, as executrix of her husband’s estate, paid $5,000 to renew the option on the Tampa, Florida, land. On the advice of tax counsel, Mrs. Heyman, as executrix, executed an assignment of the option to herself, to her son, Samuel, to her daughter, Abigail, and to Kline on July 16, 1968. Mrs. Heyman signed only the ribbon copy which was given to Samuel to hold for her. Both Mrs. Hey-man and Samuel testified that the assignment was never delivered to Kline, but that he found it going through office files. Kline testified that Samuel gave him a copy of the assignment when he returned from a business trip. Judge Timbers accepted the Heymans’ version of the events and found that requisite legal delivery of the assignment had never in fact been made and thus that the assignment was ineffective.
Kline continued to work for Mrs. Hey-man under the oral agreement until September 9, 1968, when they signed a new written agreement. The agreement provided that Kline would work as a developer of real estate for the Hey-mans and would have the right to participate in any real estate ventures entered into by the Heymans to the extent of 15%. The contract also recited that it was “understood” that Kline had “opted to participate to the extent of 15% in our Tampa venture” and that, “[a]s a 15% partner,” he would be liable for his proportional share of the expenses. In accordance with his arrangement with the Heymans concerning the sharing of expenses associated with the acquisition of the Tampa land, Kline made several payments through December 1968 which totalled $13,591.62.
In August 1968, Mrs. Heyman exercised the option and the closing took place on December 9, 1968. According to Kline’s brief, his interest “would have amounted to $600,000.00 to $1,000,000.00 less his 15% share of principal and costs.”
In January 1969, Annette Heyman discharged Kline for alleged breaches of his employment contract. At trial Judge Timbers found, after hearing disputed evidence, that Kline had committed “numerous material” breaches of his employment contracts: e. g., submitting fraudulent expense vouchers; performing real estate services for persons other than the Heymans in violation of the exclusivity provision of the contract; accepting a kickback from one of the tenants.
On appeal, Kline argues that the district court erroneously denied his timely filed written demand, under Rule 38, F.R.Civ.P., for a jury trial on all issues so triable. We agree. Kline was denied a jury trial despite his demand therefor, because the district judge found that he had waived his right to jury trial by his counsel’s actions at a pretrial conference. In our view, the record does not show any waiver of Kline’s right to jury trial.
On February 12, 1970, approximately 13 months after Kline had been discharged, Annette Heyman filed suit in the District of Connecticut seeking damages for Kline’s breach of contract and asking for injunctive and declaratory relief to the effect that Kline had no interest in the Tampa property. At the same time, to bar Kline from initiating any legal proceedings with respect to the land, the plaintiff moved for a TRO which Judge Timbers signed that day. No notice of this application was given to the defendant or his counsel and Mrs. Heyman’s counsel merely asserted in the application that notice should not be required because “to do so would permit the immediate and irreparable injury, loss and damage to plaintiff Annette Heyman described in the verified complaint. ,” After Judge Timbers signed the TRO at 4:00 p. m. it was personally served on Kline at 11:.30 that night in Largo, Florida.
On February 13, 1970, Kline filed a quiet title suit in the County Court of Hillsborough County, Florida, alleging his 15% interest in the 73-aere tract in Tampa.
On February 20, 1970, counsel for both parties appeared before Judge Blu-menfeld in Bridgeport. Thomas J. Dolan, Esq., appeared specially for Kline and filed a motion to dismiss the complaint for lack of jurisdiction. It was agreed by counsel that the ruling on that motion and the hearing on the plaintiff’s motion for a preliminary injunction should be postponed until February 24 when they could be heard by Judge Timbers who had issued the TRO. It was also agreed that the TRO would remain in effect until then.
On February 24, 1970, counsel for Mrs. Heyman filed a motion charging Kline, his New York counsel, Harvey B. Oshins, and his Florida counsel, John R. Bush, with contempt, alleging that the TRO had been violated when Kline’s lawsuit was filed in Florida. The hearing of this motion and of the other pending applications were postponed until March 3, 1970 by agreement of counsel.
On March 3, 1970, Judge Timbers heard Kline’s motion to dismiss and later denied it with an opinion filed March 19, 1970. Hearings on the motions for a preliminary injunction and for judgments of civil contempt were postponed until March 25, 1970, Kline’s counsel consenting to continuance of the TRO.
On March 25, Judge Timbers held an extended conference with counsel in his chambers in order to schedule the hearings on the motion for a preliminary injunction and the motion to adjudge Kline and his attorneys in contempt. Neither party was present. Mrs. Heyman was represented by her attorneys, Jacob D. Zeldes and John R. Needle, and Kline by his attorney, Thomas J. Dolan. After some discussion, Judge Timbers suggested that the parties agree to the use of the Rule 65(a) (2), F.R.Civ.P., procedure by which trial on the merits could be consolidated with the hearing for a preliminary injunction. He also suggested that the contempt motion be heard on the same date. During this discussion, which was concerned solely with the mechanics of scheduling, the following colloquy took place:
Judge Timbers: ....
And I would say that I would hope to handle it myself, simply because I have been familiar with it and I have had it up to this point and it would probably save some time.
But I have in mind that I could handle this case in the third floor courtroom, being a non jury case, and I will try to keep myself open to handle it if counsel could agree on that date.
But I think I might also say, if there is agreement on a day and we set it firmly, I will insist we go forward; and I think it really should be a peremptory assignment, barring illness on the part of counsel or the judge.
Mr. Zeldes (for plaintiff): Is that satisfactory to you, that date? [Pause] I think it may squeeze me, Your Honor.
Mr. Dolan (for defendant): I am quite certain it is, your Honor. I don’t have my client here. I would have to call him.
But I see that this would have to take precedence over anything that he will have on his schedule.
Mr. Dolan, for the defendant Kline, also pointed out that he would have to file an answer and a “cross-complaint” seeking relief against the plaintiff. It was agreed that the answer and counterclaim would be filed by April 2, the plaintiff would close the pleadings by April 9 and that all discovery was to be completed by April 20. Judge Timbers then set the case for April 27, 1970.
On March 31, 1970, Kline filed his' answer and counterclaim. Specifically, he sought damages for breach- of his employment contract with Annette Heyman, punitive damages for her breaching the contract and excluding Kline from an interest in the Tampa land and, on the basis of the employment contracts and the July 16 assignment of the option, he requested various forms of equitable relief with a view to establishing his interest in the Tampa land. The answer and counterclaim were accompanied by a written demand for a jury . trial.
Mrs. Heyman then moved to strike the demand for a jury and, after argument on April 20, Judge Timbers granted the motion. In striking the demand he said, “[I]f there had been any basis for claiming a jury trial, it seems to me then to [March 25] and there was the time say so. If you are talking about Rule 65 you are talking about equitable proceedings. . . . [T]here was — to me anyway — -a clean and unequivocal agreement to try this case to the Court without a jury as to all issues.”
We disagree. “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). “[T]he right of jury trial is fundamental, [and] courts [must] indulge every reasonable presumption against waiver.” Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937). The Federal Rules of Civil Procedure have worked out a careful scheme by which defendants may waive their right to jury trial: jury trial is waived if no party has demanded a jury once ten days have passed from the filing of the final pleading. Rule 38, F.R.Civ.P. At the time of the March 25 conference, Kline still had not filed his answer. Accordingly, he was entitled to demand a jury trial unless he himself had waived the right or his attorney had waived the right after being authorized by Kline to do so. It is clear that no such waiver occurred.
Though Judge Timbers had noted in passing that this was a “non jury trial,” the attorneys did not affirmatively agree to this suggestion and they may well have understood it to refer only to the hearing on the preliminary injunction. Moreover, Kline was in Florida, as he had been during most of the preliminary stages of the case, and not in the judge’s chambers, when Judge Timbers made his statement. Kline’s only appearance prior to April 27 was at the March 3 hearing. Thus his attorney’s failure to object to the judge’s statement was done without Kline’s knowledge, and in a setting where it was not unreasonable to believe that all that the judge would pass upon was the demand for a preliminary injunction.
The right to jury trial is too important, see Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. West-over, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed. 2d 988 (1959); and Lumbard, Trial by Jury and Speedy Justice, 28 Wash. & Lee L.Rev. 309, 311-13 (1971), and the usual procedure for waiver of the right too clearly set out by the Civil Rules for courts to find a knowing and voluntary relinquishment of the right in a doubtful situation. The failure of Kline’s counsel to respond to an offhand remark by Judge Timbers during the scheduling of a hearing for a preliminary injunction when Kline had yet to file his answer, and there was still time before a jury demand had to be made, cannot fairly be construed to evidence any intent to waive Kline’s right to jury trial. We would fail to recognize the important place of the civil jury in the pantheon of our liberties were we to hold its use so easily lost. Waiver, prior to the time for demanding jury trial has begun, should be based on nothing less than an affirmative representation by the party himself, or by his duly authorized counsel, on representation to the court that the matter has been discussed with the client and that the client has determined not to exercise his right to jury trial. In the absence of such affirmative action by Kline or his attorney, and in view of Kline’s timely filed demand, we hold that it was error for the district judge to deny Kline a jury trial on the contract issues.
Moreover, as Kline had yet to file his answer and counterclaims, the nature of all the issues in the case could not have been known at the time of the March 25 conference. Kline was entitled to a jury trial on his counterclaim which alleged that Mrs. Heyman had breached the employment contract by discharging him without cause as well as on his claim for punitive damages. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).
We note that the district judge evidently thought that “if you are talking about Rule 65 proceedings, you are talking about equitable proceedings,” and therefore there is no right to jury trial. But though Rule 65(a) (2) does deal with the consolidation of a hearing for a preliminary injunction with trial on the merits, the rule specifically states “This subdivision (a) (2) shall be so construed and applied as to save the parties any rights they may have to trial by jury.” Agreement to a consolidation of trial on the merits with a hearing for a preliminary injunction by itself in no way amounts to a waiver of the right to jury trial.
We must consider, then, to what extent the district court’s determinations here are infected by its erroneous denial of a jury trial. The constitutional guarantee of jury trial extends, of course, only to claims for legal relief; equitable claims are properly tried only to a judge. It is now fundamental, though, that when legal and equitable claims are tried together, common questions of fact must be decided by the jury in order to preserve the integrity of the seventh amendment guarantee. E. g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-473, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The Court’s concern in these cases has been the res judicata or collateral estoppel effect of a prior determination of an equitable claim upon questions common to a legal claim.
On this appeal, however, Mrs. Hey-man has specifically stated that in the event this court finds error in the district court’s denial of Kline’s demand for a jury trial, she agrees to waive all collateral estoppel effect of the district judge’s determination of the equitable claims with respect to the legal claims which must be retried. Thus, we might remand only the legal claims, letting the equitable claims stand. De novo consideration of all relevant facts on the legal claims could then be had and no infringement upon the seventh amendment guarantee arguably would result from permitting the determination of the equitable claims to stand. While such reasoning is perhaps constitutionally sound, we nevertheless consider appel-lees’ waiver inadequate to permit us to remand only the legal claims under the employment contracts.
In waiving the collateral estoppel effect of the determination of the equitable claims, Mrs. Heyman can dispose of only her own interest. But among other things, the doctrine of collateral estoppel rests “firmly on the need to avoid conflicting adjudications (involving the same parties). ... If possible, the same parties should not be subject to conflicting determinations on the same point, both of which are binding.” Armstrong v. United States, 354 F.2d 274, 290-291, 173 Ct.Cl. 944 (1965). See also Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 977, 178 Ct.Cl. 543 (1967). In this respect, Kline has a substantial interest in the collateral estoppel effect of the determination of the equitable claims under the employment contracts; yet, he has not entered any waiver. And even putting aside whatever interest Kline may have, this court, in furtherance of its responsibility to preserve the integrity of the judicial process, has a substantial concern in the consistent determination of any particular question. Were we to remand only the legal claims, we would create a situation ripe with the possibility of inconsistent determinations of the same question. Consequently, we conclude that all claims and counterclaims — both legal and equitable— must be remanded for retrial.
Upon retrial, the jury’s verdict will control whether Mrs. Heyman is entitled to any equitable and declaratory relief. The declaratory relief requested — that Kline has no interest in the Tampa parcel — is much like the equitable remedies of cancellation and rescission and its disposition by the court will depend in part on the jury’s determination of whether Kline breached his employment contracts and in part on the jury’s determination of whether the July 16 assignment was effective. As for Kline’s claims under his employment contract with Mrs. Heyman, the equitable counterclaims will have to await the jury’s determination of whether he breached his contract; the counterclaim for damages will be directly passed upon by the jury.
The district court held Kline and his attorneys in civil contempt for violating the TRO of February 12, 1970 forbidding them to institute proceedings with respect to the Florida land in any other court. In our view, the injunction was erroneously issued, see infra, and since, unlike convictions for criminal contempt, judgments of civil contempt fall when the order underlying them is vacated, the civil contempt must be reversed. United States v. United Mine Workers of America, 330 U.S. 258, 294-295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Cliett v. Hammonds, 305 F.2d 565, 570 (5th Cir. 1962).
Federal courts and state courts are courts of overlapping jurisdiction and, generally, one will not enjoin proceedings in another. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922). A recognized exception is when one court, adjudicating an in rem proceeding in which it must assert control over the res in order to have jurisdiction, enjoins another court seeking control over the same res. 28 U.S.C. § 2283; see Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935). Here, however, the federal court proceeding was in personam, and its jurisdiction was based on the diversity of citizenship of the parties, not on its control of the res — the 73-acre tract of land in Tampa, Florida. Since the court did not need to issue the TRO to protect its jurisdiction, see United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840 (1938), the TRO should not have issued and the contempt findings based upon it must be vacated.
Reversed.
. After the court’s order liad issued plaintiff began a contempt proceeding by serving an order to show cause why Kline and his wife .Teanne Kline should not be held in contempt for failure to comply with the court’s judgment. Kline had purported to assign one-half of his interest in the land to Mrs. Kline in August 3969. Kline appeared in the proceeding and executed a quitclaim deed suggested by the court and plaintiff withdrew her application for a contempt order against him.
Mrs. Kline, who was never a party to this proceeding, appeared specially and presented the defense that the district court lacked jurisdiction over her in both the plenary action and the contempt proceeding. The court held that it did have jurisdiction and a final judgment of contempt was entered against her.
This court reversed, holding that Mrs. Kline was neither a “nominee" of Kline nor in “active concert or participation with him,” see Rule 65(d), F.R.Civ.P., and that the district court lacked jurisdiction over her. Heyman v. Kline, 444 F.2d 65 (2d Cir. 1971).
. There is considerable doubt that the plaintiff made an adequate showing under Buie 65(b) of the Federal Buies of Civil Procedure to justify the granting of the TBO without notice. The only allegation in the complaint that supported the TBO was that “ [ d] efendant’s threatened conduct . . . may prevent plaintiff Annette Heyman and her tenant from obtaining financing for the proposed shopping center and cause plaintiff Annette Heyman’s tenant to terminate said lease . . . .” It is unlikely in the extreme that any such dire consequences would have resulted from the short delay needed to notify Kline or his attorney so that they might be heard on the application for a TBO. Moreover, Mrs. Heyman’s attorney made no certification to the court of “reasons supporting his claim that notice should not be required.” The fact that Kline was served in Florida less than eight hours after the TBO was signed and filed in Bridgeport would seem to indicate that notice could in fact have been given him. Buie 65(b) (2), F.B.Civ.P.
. Kline advances that contention in this court, arguing that Mrs. Heyman has really brought a quiet title suit regarding Florida land in a Connecticut court. A quiet title proceeding, of course, takes place only in the state of the res. Huntington v. Attrill, 146 U.S. 657, 669, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). However, Kline’s argument founders on the case of Massie v. Watts, 10 U.S. (6 Crunch) 148, 3 B.Ed. 181 (1810). There Chief Justice Marshall distinguished between a quiet title proceeding and a case in which the relief requested might affect title, but title is dependent on the construction of a contract between two parties. In the latter case, a court of equity could take jurisdiction over the parties and order any necessary equitable relief. See United States v. Ross, 302 F.2d 831 (2d Cir. 1962).
. Rule 65(a) (2) provides:
Consolidation of Hearing with Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may, order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
. Kline’s answer in which lie demanded a jury trial was sworn to by him in Florida on March 27, 1970. It appears to have been prepared by his Florida attorney, John R. Bush. Kline’s Connecticut attorney, Thomas J. Dolan, withdrew on April 8, and was replaced by William B. Rush who had filed appearance on April 1st. The appellee’s brief argues that this change of counsel was made to avoid the alleged March 25 “waiver” of jury trial by counsel on behalf of Kline. It is noteworthy that Mrs. Heyman also changed counsel after the March 25 conference. Jon O. Newman appeared on April 2, 1970 in place of Jacob D. Zeldes.
In any event, we hold that short of a party’s consent, or authorization of counsel to consent, there could be no effective waiver except by operation of Rule 38, F.R.Civ.P.
. Rule 38 provides :
(b) Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
(d) The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein jjrovided may not be withdrawn without the consent of the parties.
. On February 20, 1970, well before the answer was due on March 4, 1970, Kline had moved to dismiss the complaint. Judge Timbers did not file his ruling on this till March 18. Accordingly Kline’s answer was not due till March 28. Rule 12(a), F.R.Civ.P. Meanwhile, on March 25, the court liad extended Kline’s time to file until April 2, 1970.
. Accord, Bruce v. Bohanon, 436 F.2d 733 (10th Cir. 1970), cert. denied Marathon Oil Co. v. Bruce, 403 U.S. 918, 91 S.Ct. 2227, 29 L.Ed.2d 694 (1971). See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 956, 3 L.Ed.2d 988 (1959) (Trial court’s discretion to try-equitable issue just to the court must be “very narrowly limited and must, wherever possible, be exercised to preserve jury trial”).
. Of course, had the district court honored the demand, it is more likely that the court would first have heard the application for preliminary relief and would then have set the jury issues for a trial at some later time.
. Under Connecticut law, breach of contract warrants the cancellation of Kline’s interest in the land. Benassi v. Harris, 147 Conn. 451, 162 A.2d 521 (1960); Caramini v. Tegulias, 121 Conn. 548, 186 A. 482 (1936).
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:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Themis N. ANASTOS and Hugh M. Matchett, etc., Petitioners-Appellants, v. M. J. D. M. TRUCK RENTALS, INC., et al., Respondents-Appellees. Themis N. ANASTOS and Hugh M. Matchett, etc., Petitioners-Appellants, v. William J. O’BRIEN, Respondent-Appellee. M. J. D. M. TRUCK RENTALS, INC., a Pennsylvania Corporation, and William V. Demaio, Plaintiffs-Appellants, v. William J. O’BRIEN, Defendant-Appellee. M. J. D. M. TRUCK RENTALS, INC., et al., Plaintiffs-Appellees, v. William J. O’BRIEN, Defendant-Appellant.
Nos. 73-2007, 74-1440 to 74-1442.
United States Court of Appeals, Seventh Circuit.
Argued April 9, 1975.
Decided Aug. 26, 1975.
Rehearing and Rehearing En Banc Denied Sept. 23, 1975.
Hugh M. Matchett, Chicago, Ill., for petitioners-appellants.
Terry F. Moritz, Isham, Lincoln & Beale, Albert H. Beaver, Chicago, Ill., for respondents-appellees.
Before PELL, STEVENS and TONE, Circuit Judges.
STEVENS, Circuit Judge.
This is a malpractice action brought by a successful plaintiff against its former trial counsel for failing to perfect a judgment lien on the defendant’s realty before the defendant commenced bankruptcy proceedings. The jury returned a verdict against the attorney. He appeals, arguing that as a matter of Illinois law the judgment in the underlying case could not have supported an effective lien because there was no time prior to the bankruptcy when the judgment was both final and subject to execution. Since we agree that recording the judgment would not have perfected a lien, the failure to do so breached no duty owed by the attorney to the plaintiff and caused the plaintiff no harm. We therefore reverse without finding it necessary to discuss the other points argued by appellant, the plaintiff’s claim that the damage award should have been higher, or the contentions of the petitioners-appellants who sought leave to intervene in order to share in the recovery.
William J. O’Brien, the defendant in this malpractice action, represented the plaintiff in an action against Hamilton; that litigation is described in some detail in our opinion in Hamilton Steel Products, Inc. v. Yorke, 376 F.2d 463 (7th Cir. 1967). For present purposes we need repeat only the essential chronology.
On June 3, 1964, the district court entered a judgment of $107,587 in favor of plaintiff and against Hamilton; under Rule 62(a), Fed.R.Civ.P., all proceedings to enforce the judgment were automatically stayed for ten days. Within that ten day period, on June 12, 1964, Hamilton filed a motion for a new trial and a motion for a stay of execution. On June 23, 1964 the district court took the motion for a new trial under advisement and granted the stay of execution “until 10 days after ruling on motion for new trial.” On January 22, 1965 plaintiff filed a remittitur reducing the judgment to $60,261, and the motion for a new trial was denied. By its terms, the stay of execution expired ten days later.
In the meantime, on December 9, 1964 Hamilton had commenced proceedings under the bankruptcy act which in due course resulted in an adjudication of bankruptcy and a sale of Hamilton’s real estate. The plaintiff was thereby deprived of substantially the entire benefit of its judgment, a consequence which could have been avoided if a valid lien had been perfected prior to August 9, 1964, a date four months before Hamilton commenced bankruptcy proceedings. The alleged malpractice consists of O’Brien’s failure to perfect a lien on Hamilton’s real estate prior to August 9, 1964. His actions on behalf of the plaintiff subsequent to that time are not relevant on this appeal since we have already decided that he did not succeed in perfecting a lien which related back to the date of the original judgment.
There is no dispute about the fact that O’Brien did not record the plaintiff’s judgment until after August 9, 1964. He argues, however, that an earlier recording would not have created a lien on Hamilton’s real estate; therefore, he had no professional obligation to record the judgment earlier and, as a matter of law, is not guilty of malpractice.
In order to create a lien on real estate in Illinois, a recorded judgment “must possess two qualifications; First, it must be final and for a definite sum; and second, it must be such a judgment that execution may issue thereon.” Noe v. Moutray, 170 Ill. 169, 177, 48 N.E. 709, 712 (1897). See also, City of Chicago v. Hall, 103 Ill. 342, 348 (1882); Lehman v. Cottrell, 298 Ill.App. 434, 440, 19 N.E.2d 111, 114 (1939); R. Kratovil & F. Harrison, Jr., “Enforcement of Judgments Against Real Property,” 1951 U. of Ill’.L. Forum 1, 2; 1 Black on Judgments § 407 (1902); 2 Freeman on Judgments §§ 929, 930 (1925).
The question, then, is whether there was any time prior to August 9, 1964 when plaintiff’s judgment was both final and executable.
From June 3 to June 13, execution was stayed automatically by virtue of Rule 62(a), and during the period after June 23, execution was stayed by the order of the district court. Plaintiff is correct in pointing out that neither of those stays of execution prevented O’Brien from recording the judgment; but if no valid purpose would have been served by recording the judgment, the failure to do so cannot constitute malpractice. Since any recording while a stay of execution was in effect would not have created a valid lien, our inquiry narrows to the interval between June 13 and June 23 when no stay of execution was in effect.
During the period after June 12, 1964, when Hamilton’s motion for a new trial was filed, the judgment lacked finality; it did not become final until after the remittitur was filed and the motion for new trial denied on January 22, 1965.
Thus, at no time between June 3, 1964, and February 2, 1965, was the judgment against Hamilton both executable and final. It follows that no judgment lien could have arisen at the time of recording had O’Brien recorded the judgment during that period. Nor, under Illinois law, would such a lien, which could first attach on February 2, 1965, have related back to the date of an earlier ineffective recording. In Lehman v. Cottrell, supra, the court explained that when the deficiencies preventing attachment of a judgment lien are removed, the lien arises as of that date, and does not relate back to any earlier time. 298 Ill.App. at 443, 19 N.E.2d 111. See also 1 Black on Judgments § 408, at 644; 2 Freeman on Judgments § 929, at 1957. It follows as a matter of law that O’Brien could not have perfected a lien on Hamilton’s real estate prior to the bankruptcy and that the district court erred in failing to grant his motion for a directed verdict.
Reversed.
. In our prior opinion we incorrectly stated that the motion was filed on June 23, 1964 (see 376 F.2d at 464); the reference to an incorrect date did not affect the disposition of that appeal, but is critical on this appeal.
. See 11 U.S.C. § 107(a)(1).
. As we explained in Hamilton Steel Products:
“Section 1962 of the Judicial Code provides that every judgment rendered by a District Court within a State shall be a lien on the property in that State as provided by the law of the State (28 U.S.C. § 1962). The necessary reference to the governing Illinois statute provides that a judgment of a court of the United States shall become a lien upon the real estate of the person against whom the judgment is rendered upon filing a copy of the judgment in the office of the county recorder of deeds (Ill.Rev.Stats.1965, c. 77, § 69a). Under these two provisions, it is clear that MJDM’s judgment could not be perfected into a valid lien until it was filed with the Recorder of Deeds of Cook County. That was not done until March 12, 1965, long after the date of bankruptcy.” 376 F.2d at 465.
. In our opinion in Hamilton Steel Products, Inc. v. Yorke, 376 F.2d 463, we noted that since there had been no recording of the judgment prior to December 9, 1964, there was no basis for a conclusion that a subsequent recording might effectively relate back to the date of the original judgment. It is now clear from our examination of the record and the pertinent Illinois authorities that there would have been no relation back of an effective lien even if an earlier recording had been made. In other words, our decision on the prior appeal is supportable for a reason in addition to that upon which we relied in that opinion.
. As Professor Moore has explained:
“If any such motion [including a motion for a new trial under Fed.R.Civ.P. 59(b)] is timely made, the judgment ceases to be final until the motion is disposed of.”
9 J. Moore, Federal Practice fl 110.08[3], at 120-121 (1973). Thus, the June 3 judgment became interlocutory upon the filing of the new trial motion on June 12. An interlocutory order cannot give rise to a judgment lien. 1 Black on Judgments § 408; 2 Freeman on Judgments § 929.
. At the time of the decision in Lehman, Illinois law did not require that a judgment be recorded to create a lien against real property of the judgment debtor located in the county of the court rendering the judgment. The recording requirement herein involved was added by the Act of August 9, 1963, Laws 1963, p. 2678, § 1. See S.H.A. ch. 77, § 1, Historical Note (1966). Such a requirement cannot have been intended by the General Assembly to affect the other prerequisites for the creation of a valid judgment lien, however, because the recording of judgments had been required in Illinois since 1889 in order to create a lien on real estate located in counties other than that of the court that returned the judgment. Id. Noe and Lehman, supra, wherein the requirements of finality and executability are discussed, were both decided after this 1889 act. Thus, the 1963 amendment merely expanded the theretofore existing recording requirement to the county of the court rendering the judgment.
It follows that when a judgment lacking one or both of the requirements to create a lien is recorded, and the deficiencies are subsequently remedied, the lien attaches as of this latter date, at the earliest, and does not relate back to the date of recording. In other words, a recording puts third parties on notice as to the possible existence of an encumbrance, but does not create any lien prior to the time that other requirements for such a lien have been satisfied.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_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
HERZOG v. KRONMAN.
No. 6513.
United States Court of Appeals for the District of Columbia.
Argued Jan. 10, 1936.
Decided Feb. 17, 1936.
Mark P. Friedlander and Robert I. Silverman, both of Washington, D. C., for appellant.
M. D. Rosenberg, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
PER CURIAM.
Appellant, whom we shall call plaintiff, brought an action which he calls an action for “slander of title” against appellee, whom we shall call defendant, for seven hundred odd dollars actual damages and twenty-four thousand odd dollars exemplary damages. The facts alleged in the declaration are that plaintiff inherited a certain parcel of land from his father on which there was a debt of $14,000.00, evidenced by a note secured by mortgage on the land; that after his father’s death he qualified as executor, and, during the period of administration, defendant, the holder of the note, filed claim in the probate court of the .District of Columbia, in which he stated he was the owner of the note, that the same had been protested for nonpayment, and that he held no security for same. Plaintiff copied into his declaration the docket entry in the probate court, and this entry showed the name and residence of the claimant, the amount and nature of the claim; and, under the latter heading, that it was a “real estate note” assumed by plaintiff’s father and bore interest at 6 per cent, from a period a little less than a month prior to the docketing. The allegation is that the statement in the claim that the note had been protested and that there was no security for the same was defamatory because the fact was the note was not then due; and, as a result of the filing of the claim — as due and unsecured — “plaintiff was put to great inconvenience and was vexed, harrassed and put to divers and great expenses,” etc.
The actual expenses alleged are the cost for an additional year of the executor’s bond and attorney fees and court costs, but the total is under the jurisdictional amount entitling plaintiff to sue in the Supreme Court of the District of Columbia; and nothing of fact is specifically alleged to sustain the claim of exemplary damages. The lower court, in dismissing the action, said that nothing was stated in the declaration which directly or by innuendo disparages title to the property in question.
Admitting that the words used in the claim filed in the probate court were malicious — which, however, we think does not in fact appear — there is nothing to show plaintiff sustained special damages as the natural and proximate consequences thereof; and there is certainly nothing in the docket entry made by the clerk, as the result of the filing of the claim, calculated in the ordinary course to cause damage to the title to the land, special or otherwise. There is no charge that the sale of the property was defeated by the alleged libel, or that the property was in any respect injured as the result of filing of the claim. And we know of no rule of law under which plaintiff could recover exemplary damages, in an action of this nature, without charging and proving that the libel prevented the sale or leasing of the land or otherwise damaged the title.
To maintain the action, slander of title, it must be charged and shown that the words are false and were malicious, and that the damage alleged naturally and reasonably resulted; and, if special damage is alleged, it must be claimed and facts must be alleged on which it may be sustained. That an action in case will lie for recovery of actual damages, if willfully and intentionally caused, will not help plaintiff here, for in that case because of lack of jurisdictional amount the action must have been brought in the municipal court.
Affirmed.
Question: What is the nature of the 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_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
JOSEPH SCHACHTER & COMPANY, Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 86-7295.
United States Court of Appeals, Second Circuit.
Argued Aug. 11, 1986.
Decided Aug. 20, 1986.
Thomas H. Sear, New York City (Spengler, Carlson, Gubar, Brodsky & Frischl-ing, of counsel), for plaintiff-appellant.
Richard Lutz, New York City (Townley & Updike, of counsel), for defendant-appel-lee.
Before PRATT and MINER, Circuit Judges, and RE, Chief Judge of the United States Court of International Trade, sitting by designation.
PER CURIAM:
Our decision in this case was originally rendered as a summary order pursuant to § 0.23 of the rules of this court. Counsel for the John Hancock Mutual Life Insurance Company (“John Hancock”) subsequently requested that the summary order be converted to an opinion of the court, suggesting that it would serve a jurisprudential purpose in similar cases arising in the future. Accepting counsel’s representation, the panel has agreed to re-issue this decision as an opinion of the court.
BACKGROUND
Appellant, Joseph Schachter & Co., seeks to collect as beneficiary under a life insurance policy issued by John Hancock in the amount of $500,000 on the life of Jay Frankel. Frankel, a business associate of Schachter’s, was found dead on November 3, 1982. John Hancock refused to pay, claiming that Frankel’s death was a suicide committed within the two year incontestability clause of the policy.
Appellant made its prima facie case by establishing the existence of the insurance policy and John Hancock’s nonpayment. John Hancock adduced evidence of extreme financial setbacks recently suffered by Frankel, and placed in evidence the facts surrounding Frankel’s death, which were highly suggestive of suicide. For its part, appellant attempted to demonstrate that Frankel’s death was the result of either homicide or an accident. The United States District Court for the Southern District of New York, Richard Owen, Judge, entered judgment on the jury’s verdict for John Hancock. On this appeal, appellant challenges several of the district court’s charges and evidentiary rulings. Finding no merit to any of its contentions, we affirm.
DISCUSSION
Appellant argues that the New York Court of Appeals intended for it to be “practically impossible” for an insurance company to succeed when invoking the suicide clause of a life insurance policy. See Schelberger v. Eastern Savings Bank, 60 N.Y.2d 506, 509, 470 N.Y.S.2d 548, 549, 458 N.E.2d 1225, 1226 (1983) (citing Schelberger v. Eastern Savings Bank, 93 A.D.2d 188, 197, 461 N.Y.S.2d 785, 790 (1st Dep’t 1983)). Therefore, it contends that Judge Owen improperly charged the jury on New York’s presumption against suicide by altering the language from the New York Pattern Jury Instructions approved by the court of appeals in Schelberger. That language provides, in pertinent part: “You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.” 60 N.Y.2d at 509, 470 N.Y.S.2d at 549, 458 N.E.2d at 1226. Judge Owen used the same language except for the final clause, for which he substituted “that it was suicide and that no conclusion of accidental death may reasonably be drawn.”
According to appellant, the district judge’s alteration mandated a verdict for John Hancock unless the jury believed the death to be accidental, whereas the Schelberger language would allow the jury to consider the additional possibilities of homicide and death by either natural or unknown causes. Although the Schelberger language did encompass these other possibilities, it does not follow that Judge Owen’s change in the language of the charge was improper. There being no admissible evidence either of homicide or of death by natural or unknown causes in this case, there was no reason to allow the jury to speculate on those points. In fact, the district judge’s redaction of the language was needed to avoid confusing the jury after he had earlier charged that there was no issue of homicide in the case.
In a related vein, appellant maintains that it was improper to charge the jury that it could not consider homicide. However, while appellant raised the spectre of homicide in its opening statement, it presented no competent evidence to suggest that Frankel had in fact been killed. The only evidence appellant offered on this point, which suggested that Frankel had been involved with organized crime, was excluded on hearsay grounds. On the other hand, John Hancock presented testimony by the investigating detective that he had found no evidence of foul play.
The mere fact that John Hancock bore the burden of proof of establishing that Frankel’s death was a suicide does not mean that the jury should have been allowed to speculate on all other possible causes of death. In these circumstances, the district judge correctly charged the jury that there was no issue of homicide in the case.
Appellant next contends that language in the appellate division’s opinion in Schelberger recognizes an incompatibility between the preponderance of the evidence standard and the presumption against suicide. Appellant claims that the district judge therefore erred by placing the burden of proof on John Hancock to establish suicide by a preponderance of the credible evidence. This argument, however, overlooks the fact that both the appellate division and the court of appeals in Schelberger affirmed a trial court judgment entered after a jury charge that placed the burden on the insurance company to establish suicide by a preponderance of the credible evidence, rather than by clear and convincing evidence. Appellee’s brief at 37 (quoting the trial court’s jury charge). Moreover, the charge upheld in Schelberger was in keeping with similar charges previously upheld by the court of appeals. See, e.g., Wellisch v. John Hancock Mutual Life Insurance Co., 293 N.Y. 178, 183, 56 N.E.2d 540, 542 (1944).
Appellant also attacks the district judge’s decision to exclude a portion of the report by the police expert who investigated Frankel’s death. Judge Owen allowed detective Lienau, a veteran New York City detective, to testify as an expert that there was “no foul play” involved in Frankel’s death; however, on appellant’s cross-examination of Lienau, the court excluded his conclusion that “the subject either jumped or fell to his death.” Appellant’s contention that this ruling was error is without merit.
Judge Owen admitted Lienau’s testimony on the question of a possible homicide, believing it would assist the jury. See Fed.R.Evid. 702. Lienau testified outside the presence of the jury, however, that the “jumped or fell” language was meant to convey only that no foul play was involved. Lienau stated that he could express no opinion on whether the death was an accident or a suicide, since all he had concerned himself with was whether it was a homicide. Hence, he was not an expert on the question of whether the death was an accident or a suicide, and the conclusion of his report was properly excluded.
Finally, maintaining that John Hancock failed to introduce sufficient evidence of suicide, appellant urges that a verdict should have been directed in its favor. In light of the circumstantial evidence of suicide adduced below, this argument borders on the frivolous, and the district court properly allowed the question of whether John Hancock had established Frankel’s suicide by a fair preponderance of the credible evidence to go to the jury.
The judgment of the district court is affirmed.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_casetyp1_7-2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
STATE BANK OF POPLAR BLUFF, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.
No. 16616.
United States Court of Appeals Eighth Circuit.
May 3, 1961.
H. K. Wangelin, Wangelin & Friedewald, Poplar Bluff, Mo., for appellant.
John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, Mo., for appellee.
Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.
BLACKMUN, Circuit Judge.
This diversity action is one whereby the plaintiff bank seeks to recover from its insurer the amount of a loss claimed to be compensable under a “Bankers Blanket Bond”.
There is no real dispute as to the facts: O. M. Spencer, a customer of the bank, was in the used car business. The bank financed Spencer's purchases of automobiles through a “floor plan” arrangement. This involved an advance to Spencer against his execution and delivery to the bank of a demand promissory note and a chattel mortgage on each car concerned and, upon sale of the car, the repayment of the note. Spencer encountered financial difficulties and, by the end of August 1957, over $15,000 was outstanding on his floor plan notes issued to the bank during the preceding 6 months. The bank then discovered that, although Spencer’s signatures on the notes and chattel mortgages were genuine and although he may have had possession at one time of some of the described automobiles, others of them were fictitious and he did not in fact own and have possession of any of them at the time of the execution of the respective notes and mortgages. His representations to the bank, when the notes and mortgages were delivered, that he did have such ownership and possession were false. The unpaid Spencer floor plan notes constitute the claim against the insurance company.
The bond in question was issued June 11, 1951, was supplemented by riders effective June 23, 1956, and was in effect when the particular Spencer loans were made in 1957 and the loss sustained. It is Standard Form No. 24. By it the insurance company undertook and agreed to indemnify and hold the bank harmless from certain losses up to a stated amount. The losses covered are described in several clauses but the ones pertinent here are those which have to do with “Forgery or Alteration” (Clause D) and with “Securities” (Clause E). These clauses are set forth in the margin. The bond by its Section 1(d) specifically excludes from its coverage
“Any loss the result of the complete or partial nonpayment of or default upon any loan made by or obtained from the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except when covered by Insuring Clause * * * (D) or (E).”
The plaintiff in its opening statement at the trial said “that the theory of this law suit is based on forgery and that it is our attempt to broaden the scope of forgery from the mere forgery of signatures to the forgery of an instrument as to the security represented”. This is the heart of its case. In support thereof it asserts that the bond is ambiguous to the point of being confusing; that the rule of construction favorable to the insured is applicable here; that the defendant’s acts constituted forgery; that counterfeiting is also present for we have a real signature to a false instrument; and that Y.A.M.S. § 561.011, relating to the crime of forgery and counterfeiting, lends support.
The defendant takes the position that the bond is clear and unambiguous in its language; that the notes and chattel mortgages bear Spencer’s own and genuine signature; that they were not forged or counterfeited within the coverage of the bond; that the loss was the result of the more ordinary risks of day-to-day banking operations, that is, fraud or false pretenses practiced upon the bank; and that this was outside the insuring clauses and within the very language of the quoted exclusion.
The trial was to the court and resulted in a judgment for the defendant. We affirm.
1. The bond was delivered and was to be performed in Missouri. There is no argument here that it is a Missouri contract and that Missouri law governs. See Sturm v. Washington Nat. Ins. Co., 8 Cir., 208 F.2d 97, 98, certiorari denied 347 U.S. 918, 74 S.Ct. 516, 98 L.Ed. 1073.
2. There is also no argument as to the presence of misrepresentations by Spencer, as to the bank’s reliance thereon, and as to its incurrence of loss as a result of those misrepresentations. The only question before us is whether the loss is of a kind covered by the bond.
3. Being a diversity case, we are concerned only with whether the trial court’s holding that the loss was not covered was a permissible conclusion under Missouri law. Weiby v. Farmers Mutual Automobile Insurance Co., 8 Cir., 273 F.2d 327, 331; Texaco-Cities Service Pipe Line Co. v. Aetna Cas. & S. Co., 8 Cir., 283 F.2d 912, 914, 915, and cases cited.
4. We recognize preliminarily that we have here the common situation where the defendant insurer is to be regarded as the scrivener, and that the insurer, not the insured, has the burden of showing that no liability exists by reason of a policy exclusionary clause. Hartford Accident and Indemnity Company v. Shaw, 8 Cir., 273 F.2d 133, 137; Community Federal Savings & Loan Ass’n of Overland v. General Casualty Co., 8 Cir., 274 F.2d 620, 624; Gennari v. Prudential Insurance Company of America, Mo., 335 S.W.2d 55, 60-1.
5. Ambiguity. The bank’s argument as to this is primarily general in nature and calls attention to lengthy sentences and detailed punctuation. It does point out, however, the absence of definitions of the bond’s terms “Forgery or Alteration” and “counterfeited or forged”, even though the bond is a standard form used throughout the country where the “laws of the several states are different”.
There is no question that the bond, particularly with its riders, is lengthy, cumbersome, and perhaps complex. The banking business itself, however, is today a complex enterprise and appropriate protective coverage as a consequence requires detailed and seemingly complicated descriptive material. But complexity need not equate with ambiguity.
We have recently had occasion in another Missouri case to note that the Supreme Court in Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416, stated that where the terms of an insurance policy are of doubtful meaning, that construction most favorable to the insured will be adopted; that this, however, “furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist”; and that “contracts of insurance, like other contracts, must be construed according to the terms which the parties have used”. Massachusetts Bond. & Ins. Co. v. Julius Seidel Lbr. Co., 8 Cir., 279 F.2d 861, 865. The Supreme Court of Missouri has adopted the same rule, and will not permit “a perversion of language” to create an ambiguity where none exists. Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101-102, 57 A.L.R. 615; Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S.W.2d 76, 78; Aetna Life Insurance Co. of Hartford Conn. v. Durwood, Mo., 278 S.W.2d 782, 786.
We think that this approach is fully applicable here; that the bond, insofar as the issues presently involved are concerned, is not ambiguous or open to differing constructions; and that it is susceptible of appropriate understanding by an insured bank. We regard its terms as unlike and not comparable to the contract provision involved, for example, in Travelers Indemnity Co. v. Nielson, 8 Cir., 277 F.2d 455, affirming D.C., 174 F.Supp. 648, 662, where ambiguity was found.
6. Forgery and Counterfeiting. General definitions tell us that “forgery” means the “act of forging, fabricating, or producing falsely”, that the noun “counterfeit” means “that which is made in imitation of something with a view to deceive”, and that the verb “counterfeit” means “to imitate”. Webster’s New International Dictionary (Second Edition, 1960). The legal definitions place like emphasis, so far as forgery is concerned, upon “false making or material altering” and upon something “falsely made, imitated or forged” and, so far as counterfeiting is concerned, upon copying or imitating. Black’s Law Dictionary (Fourth Edition, 1951); 23 Am.Jur., Forgery, § 2; 37 C.J.S. Forgery § 1; 14 Am.Jur., Counterfeiting, § 2; 20 C.J.S. Counterfeiting § 1. All this implies to us falsification and lack of genuineness in the instrument itself rather than in its content.
We would think, too, that the cited Missouri crime statute lends little support to the bank’s position here. We do not now decide whether a state statute’s definition of a crime such as forgery is to be controlling in the determination of the meaning of the same word in a fidelity bond. We note, however, that the only language of § 561.011 which would be helpful to the plaintiff is the phrase in subsection 1(1) “* * * to make or alter any writing * * * so that it purports to have been made * *. * with different terms”. The notes and chattel mortgages here involved speak for themselves. They were not made or altered so that they speak “with different terms” from the ones they originally contained. The falsity here lies in the fact, extrinsic to the terms of the instruments, that Spencer did not then own or possess the automobiles.
When we turn to the reported Missouri cases, both civil and criminal (although the latter involve earlier statutes which have been replaced by § 561.011 and others enacted in 1955), we find them almost conclusive upon the question. Phleger v. Phleger, 345 Mo. 512, 134 S.W.2d 26 was an action to set aside a deed as a forgery. The Supreme Court of Missouri said, at page 27:
“There was no forgery. Plaintiff admits signing the deed. In this situation it is a question of whether a mere fraudulent statement of the consideration in a deed is a forgery. The courts are divided on the question. * * * We agree to the majority rule, which is well stated as follows:
“ ‘Forgery is the fraudulent making or altering of a writing to the prejudice of another’s right. The defendant was guilty of the fraud, but not of the making. The paper was made by the other person himself, in prejudice of his own right. * * * >»
In West St. Louis Trust Co. v. American Surety Co., 222 Mo.App. 393, 5 S.W.2d 669, a customer gave the bank his $2,800 note in return for a loan. He also delivered to the bank as collateral security 2 other notes payable to himself and a deed of trust. The signatures to these collateral instruments were forged. In denying the bank recovery against its surety company which had covered a loss on a note which was “forged”, the court said, at page 670:
“Plaintiff contends that the note executed by Wootan for $2,800 was a forgery at common law, and therefore within the coverage of the policy. It is manifest, however, that this contention is untenable. The note was not a forgery in any sense. It was in all respects what it purported to be, and there was no deceit or falsity in it, either as to its operation or effect, or as to the signature of the maker.”
See also State v. Kinder, 315 Mo. 1314, 290 S.W. 130, 131, 51 A.L.R. 564; State v. Andrews, 297 Mo. 281, 248 S.W. 967, 969; State v. Leonard, 171 Mo. 622, 71 S.W. 1017. These cases set forth Missouri’s law with sufficient clarity and positiveness as to convince us that Spencer’s acts embraced neither forgery nor counterfeiting within the language of the bond. Compare Metropolitan National Bank of Minneapolis v. National Surety Co., D.C.Minn., 48 F.2d 611; Goucher v. State, 113 Neb. 352, 204 N.W. 967, 41 A.L.R. 227; Pasadena Investment Co. v. Peerless Casualty Co., 132 Cal.App.2d 328, 282 P.2d 124, 125, 52 A.L.R.2d 203; Rockland-Atlas National Bank v. Massachusetts B. & I. Co., supra; Fitzgibbons Boiler Co. v. Employers’ L. Assur. Corp., 2 Cir., 105 F.2d 893; United States v. Brown, 2 Cir., 246 F.2d 541; Marteney v. United States, 10 Cir., 216 F.2d 760, 763; 23 Am.Jur., Forgery, § 7, p. 678; 37 C.J.S. Forgery § 5, p. 37; see 41 A.L.R. 229, 231.
There is some apparently opposing authority involving facts at least somewhat similar to those here. Fidelity Trust Co. v. American Surety Co. of New York, 3 Cir., 268 F.2d 805; Provident Trust Co. v. National Surety Corporation, 3 Cir., 138 F.2d 252, certiorari denied 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080; Security National Bank of Durand v. Fidelity & C. Co. of N. Y., 7 Cir., 246 F.2d 582; see 41 A.L.R. 229, 247. Some of these cases (Fidelity Trust; Security National Bank) involve the same Clause (E) which is now before us. We need only say, as to these cases, (1) that they are representative of a minority view referred to in Phleger, supra, at page 27 of 134 S.W.2d, in Fitzgibbons, supra, at page 896 of 105 F.2d, and in the annotation in 41 A.L.R. 229, 247, and at least one of them so recognizes (Security National Bank at page 586 of 246 F.2d); (2) that they rest on local law or upon what is deemed to be local law; and (3) that none of them involve Missouri law.
We readily conclude that the experienced Missouri federal judge who tried this case neither misconceived nor misapplied applicable Missouri law and that he reached a permissible conclusion with respect thereto.
Affirmed.
. “(D) Any loss through Forgery or Alteration of, on or in any checks, drafts, acceptances, withdrawal orders or receipts, for the withdrawal or funds or Property, certificates of deposit, letters of credit, warrants, money orders or orders upon public treasuries, or any loss (1) through transferring, paying or delivering any funds or Property or establishing any credit or giving any value on the faith of any written instructions or advices directed to the Insured and authorizing or acknowledging the transfer, payment, delivery or receipt of funds or Property, which instructions or advices purport to have been signed or endorsed by any customer of the Insured or by any banking institution but which instructions or advices either bear the forged signature or endorsement or have been altered without the knowledge and consent of such customer or banking institution, # # ❖
“(E) Any loss through the Insured’s having, in good faith and in the course of business, * * * purchased or otherwise acquired, accepted or received, or sold or delivered, or given any value, extended any credit or assumed any liability, on the faith of, or otherwise acted upon any securities, documents or other written instruments which prove to have been counterfeited or forged as to the signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent or registrar, acceptor, surety or guarantor or as to the signature of any person signing in any other capacity, or raised or otherwise altered or lost or stolen, # * * »
. “561.011. Forgery, counterfeiting, possession and uttering forged instrument or plates, penalty
“1. It shall be unlawful:
“(1) For any person with the intent to defraud to make or alter any writing of any kind having legal efficacy or com- ■ monly relied upon in business or commercial transactions, so that it purports to have been made by another, or at another time, or with different terms, or by authority of one who did not give such authority, or for any person with intent to defraud to totally erase, obliterate or destroy any such instrument; * * *
“(3) For any person with intent to defraud to use as true, or to utter as true, or to possess with intent to utter as true or false, or to transfer with intent that it shall be uttered as true, any writing or other thing which said person knows has been made or altered in the manner described in either of subdivisions (1) or (2); * * *”
. Meaning thereby, presumably, the crime statutes.
. Rockland-Atlas National Bank of Boston v. Massachusetts B. & I. Co., 338 Mass. 734, 157 N.E.2d 239, 242, provides an instance where the language of Clause (E) .was not claimed to be restricted to the statutory definition of forgery in the particular jurisdiction. We are cognizant also of the existence of V.A.M.S. § 561.-450 which is, in distinction from § 531.-011, the Missouri crime statute having to do with obtaining property by false representation.
. Subsection 1(3) relates back to 1(1) and necessarily stands or falls with it.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
In re John Richard CALDER, Debtor. Reta JOB and Dennis Job, Appellees, v. J. Richard CALDER, Appellant. In re John Richard CALDER, Debtor. J. Richard CALDER, Appellant, v. Reta JOB, Individually and as Personal Representative for the Estate of Dennis Job, Appellee.
Nos. 89-4120, 89-4121.
United States Court of Appeals, Tenth Circuit.
June 29, 1990.
John T. Anderson of Parsons, Behle & Latimer, Salt Lake City, Utah, for appellant.
Douglas J. Payne (Peter W. Billings, Jr., Sheldon A. Smith, with him on the brief) of Fabian & Clendenin, Salt Lake City, Utah, for appellees.
Before TACHA, SETH, Circuit Judges, and BROWN, District Judge.
Honorable Wesley E. Brown, District Judge, United States District Court for the District of Kansas, sitting by designation.
PER CURIAM.
Debtor J. Richard Calder has appealed from the district court’s affirmance of two orders of the bankruptcy court. First, Calder objects to the bankruptcy court’s denial of a discharge of his debts, see In re Calder, 93 B.R. 734 (Bankr.D.Utah 1988), and, second, Calder challenges the bankruptcy court’s allowance of a proof of claim. For the reasons set forth below, we affirm.
I.
Background
Calder filed the underlying voluntary petition for relief under Chapter 7 of the Bankruptcy Code on August 19, 1986. On November 21, 1986, Dennis and Reta Job (the Jobs), creditors of Calder, filed a complaint citing 11 U.S.C. § 727 and 11 U.S.C. § 523 and objecting to the discharge of Calder’s debts. Thereafter, Dennis Job executed and filed a proof of claim based on a state court judgment obtained against Calder for legal malpractice in February, 1986. Calder filed an objection to the proof of claim apparently pursuant to 11 U.S.C. § 502. In support of his objection, Calder argued that the Job’s state court judgment was obtained in violation of the automatic stay under 11 U.S.C. § 362(a) because the state court action was commenced after he had filed an earlier petition for relief under Chapter 13 of the Bankruptcy Code, and that bankruptcy proceeding was not dismissed until after the state court judgment was entered.
Following a trial, the bankruptcy court ruled, on August 12, 1988, that Calder was not entitled to a discharge of his debts. In reaching this decision, the bankruptcy court focused on the Statement of Affairs and Schedule B-l filed by Calder with his petition. The bankruptcy court determined that Calder’s failure to disclose the following information in his Statement of Affairs and Schedule B-l constituted a false oath under 11 U.S.C. § 727(a)(4)(A) precluding a discharge: (1) an ownership interest in certain mineral rights, (2) two bank accounts, and (3) monthly income which was paid by a partnership (the Red-lac Partnership) to Calder as a partner after April, 1984, and through the filing of the underlying bankruptcy petition, and designated by Calder for deposit in his wife’s bank account.
On October 13, 1988, the bankruptcy court entered a separate order rejecting Calder’s objection to Dennis Job’s proof of claim. The bankruptcy court determined that Calder could not claim the protections of the automatic stay under section 362(a) because he “failed to timely perform his obligation to provide notice to the state court of the fact that he had previously filed a petition under Chapter 13 of the Bankruptcy Code, and ... that failure constitutes a de facto stipulation between the Debtor and Job to grant Job relief from the automatic stay.” The district court summarily affirmed both the denial of discharge and the allowance of the proof of claim.
II.
Denial of Discharge
Ten categories of circumstances which can forestall a debtor’s receipt of a discharge in bankruptcy are described in 11 U.S.C. § 727(a). Calder does not dispute that an omission of assets from a Statement of Affairs or schedule may constitute a false oath under section 727(a)(4)(A). Farmers Co-op. Ass’n v. Strunk, 671 F.2d 391, 395 (10th Cir.1982). To trigger section 727(a)(4)(A), the false oath must relate to a material matter and must be made willfully with intent to defraud. See 4 Collier on Bankruptcy, 11727.04[1] at 727-54 to -57 (15th ed. 1987).
We agree with the bankruptcy court that each of Calder’s omissions was a material matter that would support denial of discharge. The omitted information concerned the existence and disposition of Calder’s property. See In re Chalik, 748 F.2d 616, 618 (11th Cir.1984) (“The subject matter of a false oath is ‘material,’ and thus sufficient to bar discharge if it bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.”). Calder has argued that he should not be denied a discharge of his debts because the undisclosed bank accounts and mineral interest were worthless assets. However, a “recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that the admittedly omitted ... information concerned a worthless business relationship or holding; such a defense is specious.” Id.
Calder’s primary contention on appeal is that the bankruptcy court erred in denying him discharge on the basis of the omitted information because these omissions were not made fraudulently within the meaning of section 727(a)(4)(A). Calder contends that the nondisclosures were merely the result of inadvertence. As Calder points out, much of his testimony at the trial on the objection to discharge, not surprisingly, was to the effect that he did not act with a fraudulent intent. Furthermore, Calder asserts that he did not disclose the transfer of income from the Redlac Partnership to his wife’s bank account after April, 1984, because that transfer was a gift and the Statement of Affairs only required disclosure of “gifts ... to family members” made during the year immediately preceding the filing of the petition.
The problem in ascertaining whether a debtor acted with fraudulent intent is difficult because, ordinarily, the debtor will be the only person able to testify directly concerning his intent and he is unlikely to state that his intent was fraudulent. Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 252 (4th Cir.1987). Therefore, fraudulent intent may be deduced from the facts and circumstances of a case. In re Devers, 759 F.2d 751, 754 (9th Cir.1985); see also Farmers Co-op. Ass’n, 671 F.2d at 395 (“Fraudulent intent of course may be established by circumstantial evidence, or by inferences drawn from a course of conduct.”). The bankruptcy court’s ultimate determination concerning fraudulent intent will not be set aside unless clearly erroneous. Williamson, 828 F.2d at 252.
In this case, several facts and circumstances, not disputed by Calder, support the bankruptcy court’s conclusion that Calder acted fraudulently in making false oaths in connection with his bankruptcy. First, Calder, as the bankruptcy court noted, is an experienced attorney practicing exclusively in bankruptcy law. He should be aware that those who seek shelter of the bankruptcy code must provide “complete, truthful and reliable information.” In re Tully, 818 F.2d 106, 110 (1st Cir.1987). Furthermore, it is significant that there was not one but four separate omissions from Calder’s Statement of Affairs and Schedule B-1. See Williamson, 828 F.2d at 252. Finally, as the bankruptcy court also noted, records of the Redlac Partnership continued to reflect Calder’s interest in the partnership after April, 1984. Thus, there is no indication that Calder absolutely and irrevocably divested himself of domination and control over his future partnership income in April, 1984. In view of these facts, we cannot say that the bankruptcy court’s finding of fraudulent intent was clearly erroneous.
III.
Allowance of Proof of Claim
Under section 362(a), the filing of a bankruptcy petition creates a broad automatic stay protecting the property of the debtor. Ordinarily, any action taken in violation of the stay is void and without effect, Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372 (10th Cir.1990), even where there is no actual notice of the existence of the stay, In re Smith, 876 F.2d 524, 526 (6th Cir.1989). Nevertheless, equitable principles may, in some circumstances, be applicable to claimed violations of the stay. The existing case law indicates that courts will apply equitable considerations at least where the creditor was without actual knowledge of a bankruptcy petition and the bankrupt’s unreasonable behavior contributed to the creditor’s plight. See, e.g., In re Smith Corset Shops, Inc., 696 F.2d 971, 976-77 (1st Cir.1982) (debtor not entitled to protection where debtor remained “stealthily silent” while creditor obtained a default judgment and execution from a state court in violation of the automatic stay); see also Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984) (laches barred debtor's attempt to void a 33-month-old state court judgment on the basis of the automatic stay).
In our view, it would be inequitable to allow Calder to claim any protections of the automatic stay under section 362(a) to defeat the Jobs’ state court judgment. The basic undisputed fact apparent from the record is that Calder actively litigated the state court action and did not provide notice of the pending Chapter 13 proceeding until just before the state court was to enter a final judgment. Calder must bear some responsibility for his unreasonable delay in asserting his rights under section 362(a). Calder's only explanation, that he forgot, is not a legitimate excuse for his delay. To hold otherwise and permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached in state court, would be inconsistent with the underlying purpose of the automatic stay which is to give a debtor “ ‘a breathing spell from his creditors.’ ” Ellis, 894 F.2d at 373 (quoting Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 449 (3d Cir.1982)).
Accordingly, the district court’s affirmance of the orders of the bankruptcy court is AFFIRMED.
. 11 U.S.C. § 727 provides in pertinent part that "(a) The court shall grant the debtor a discharge, unless ... (4) the debtor knowingly and fraudulently, in or in connection with the case ... (A) made a false oath or account_”
. We reject Calder’s argument that the bankruptcy court improperly resorted to judicial notice of his Statement of Affairs and Schedule B-l. Under Fed.R.Evid. 201(b)(2), which is applicable in bankruptcy cases, see Bankruptcy Rule 9017, a court may take judicial notice of facts that are not subject to reasonable dispute in that they are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” In this case the bankruptcy court, consistent with Rule 201(b)(2), simply took judicial notice of the contents of Calder’s Statement of Affairs and Schedule B-l and not the truthfulness of the assertions therein. Furthermore, the bankruptcy court, contrary to Calder’s suggestion, was not required to give prior notification of its intent to take notice. The burden rested with Calder to make a request for a hearing to challenge the propriety of taking judicial notice even after notice had been taken. See Fed.R.Evid. 201(e).
. While the proceedings were pending in the district court, Dennis Job died.
. The bankruptcy court did not expressly state that it was relying on equitable principles as a basis for allowing Dennis Job’s proof of claim. Nevertheless, this court is free to affirm the bankruptcy court’s determination on any ground supported by the record. Reynolds v. United States, 643 F.2d 707, 710 (10th Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981).
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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songer_appel1_2_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
FAMINE RELIEF FUND, Plaintiff-Appellant, v. STATE OF WEST VIRGINIA; Ken Hechler, an individual, in his official capacity as Secretary of State of the State of West Virginia, Defendants-Appellees.
No. 89-2167.
United States Court of Appeals, Fourth Circuit.
Argued March 7, 1990.
Decided June 8, 1990.
Rehearing and Rehearing In Banc Denied Aug. 13, 1990.
Charles Richard McElwee, Robinson & McElwee, Charleston, W.Va., for plaintiff-appellant.
Robert J. Lamont, Sr. Deputy Atty. Gen., Charleston, W.Va., for defendants-appel-lees.
William C. Porth, Jr., Robinson & McEl-wee, Charleston, W.Va., Steven Drexell Simpson, Elizabeth D. Scott, Sharon L. Hartman, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, N.C., on brief, for plaintiff-appellant.
Roger W. Tompkins, Atty. Gen., David P. Cleek, Charleston, W.Va., on brief, for defendants-appellees.
Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.
ERVIN, Chief Judge:
In this appeal, appellant Famine Relief Fund (“the Fund”) challenges the constitutionality of the West Virginia Solicitation of Charitable Funds Act (“the Act” or “the Solicitation Act”). The case arose from the refusal of the Secretary of State of West Virginia (“the Secretary”) to renew the Fund’s license to solicit charitable funds. The Fund’s amended complaint, filed in the United States District Court, Southern District of West Virginia, alleged that the Act, both on its face and as applied, violates its right of free speech under the first amendment and its rights of due process and equal protection under the fourteenth amendment of the United States Constitution.
The district court granted summary judgment against the Fund, and we now reverse that decision. Although the substantive provisions of the Act do not facially violate the charity’s first amendment rights, we find, for the reasons discussed below, that the Act’s enforcement procedures do not afford the Fund sufficient due process before this prior restraint on its speech.
I.
The Articles of Incorporation of the Famine Relief Fund state that its purpose is to alleviate poverty and hunger in “Third World” countries, “particularly Africa.” However, during 1986 and 1987, all of the Fund’s public solicitations mentioned only Native Americans, specifically the Rosebud Sioux tribe. In 1986, six percent of the Fund’s charitable grants and allocations went to the Rosebud Sioux; that percentage dropped to two percent in 1987.
In September 1987, the Fund filed a registration statement with the Office of the Secretary of State to renew its license to solicit funds. After an investigation, the Secretary advised the Fund that the renewal of its registration would be denied. Citing W.Va.Code § 29-19-8(a) and (c), he informed the Fund:
It appears that a clear description of programs is available, however, expenditures from funds collected are not related in a primary degree to stated purpose. When in-kind contributions are eliminated, nearly all of the cash contributions go to fund-raising and not to programs for the Sioux Indians.
The structure of the Board of Directors is unacceptable, not because of number, but because all board members have a direct pecuniary benefit from the charity-
On November 11, 1987, the Fund moved for a temporary restraining order and alternatively for a preliminary injunction enjoining the State of West Virginia (“the State”) from enforcing the Act and from conducting an administrative hearing to review the denial of the Fund’s license. The Fund’s request for a temporary restraining order was denied, and the administrative hearing was held on November 19, 1987. On February 25, 1988, the Commission on Charitable Organizations (“the Commission”) affirmed the Secretary’s denial of the solicitation license.
After various procedural delays, the Fund moved for summary judgment enjoining enforcement of the Act and declaring certain provisions of the Act unconstitutional. The district court denied the Fund’s motion but granted the State’s motion for summary judgment.
The Fund filed a timely notice of appeal of this decision.
II.
The purpose of the West Virginia Solicitation of Charitable Funds Act is
to protect the people of the state of West Virginia by requiring full public disclosure by persons and organizations who solicit funds from the public and the purposes for which such funds are solicited and how they are actually used, and to prevent deceptive and dishonest statements and conduct in the solicitation and reporting of funds for or in the name of charity.
W.Va.Code § 29-19-la (1986 & Supp.1989). To monitor the activities of charitable organizations, the Act requires all those subject to its provisions to file a registration statement annually. W.Va.Code § 29-19-5. This statement must contain information such as the organization’s name, address, principal officers, balance sheet, income statement, and the purposes for which contributions are to be used.
Organizations applying for registration are to be reviewed according to three “objective standards,” including, but not limited to, the following:
(a) Charitable organizations shall include in each solicitation a clear description of programs for which funds are requested and source from which written information is available. Expenditures shall be related in a primary degree to [the] stated purpose (programs and activities) described in solicitations and in accordance with reasonable donor expectations.
(b) Charitable organizations shall establish and exercise controls over fund-raising activities conducted for the organizations’ benefit, including written contracts and agreements and assurance of fund-raising activities without excessive pressure.
(c) Charitable organizations shall substantiate a valid governing structure and members shall comply with the provisions for conflict of interest as defined in section twenty-five, article one chapter thirty-one of this code.
W.Va.Code § 29-19-8.
The Act provides for administrative review of the Secretary’s decision. A charity which is denied registration may request a hearing before the Commission, at which testimony may be taken. W.Va.Code § 29-19-9(d). Such hearing and judicial review are to be conducted in accordance with the West Virginia Administrative Procedures Act. W.Va.Code § 29-19-15(d).
III.
The Fund contends that the Act violates the first amendment on its face and as applied because it limits the percentage of its expenditures that can be used for fund-raising.
It is well-settled law that solicitation by charitable organizations is speech protected by the first and fourteenth amendments to the United States Constitution. See Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 788, 108 S.Ct. 2667, 2673, 101 L.Ed.2d 669 (1988); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 959-60, 104 S.Ct. 2839, 2848-49, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632-33, 100 S.Ct. 826, 833-34, 63 L.Ed.2d 73 (1980). Charitable solicitations can inform the public about the charity’s existence and goals, disseminate and propagate its views and ideas, and advocate its causes. Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833; Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225, 1230 (4th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1923, 109 L.Ed.2d 286 (1990). In the three cases it has heard in this area, Riley, Mun-son, and Schaumburg, the Supreme Court has struck down specific state regulations of charitable solicitation as being too restrictive to pass constitutional muster.
In Schaumburg, the first in this trilogy of cases, the Supreme Court invalidated a municipal ordinance prohibiting the solicitation of contributions by charitable organizations that do not use at least seventy-five percent of the receipts for “charitable purposes.” The ordinance’s definition of charitable purposes excluded solicitation expenses, salaries, overhead, and other administrative expenses. The Court concluded:
[T]he 75-percent limitation is a direct and substantial limitation on protected activity that cannot be sustained unless it serves a sufficiently strong subordinating interest that the Village is entitled to protect.... [T]he Village’s proffered justifications [protecting the public from fraud, crime, and undue annoyance] are inadequate and ... the ordinance cannot survive scrutiny under the First Amendment.
Schaumburg, 444 U.S. at 636, 100 S.Ct. at 836. The Court emphasized that there was no evidence that organizations that spent less than 75% of their receipts on charitable purposes were any more fraudulent, criminal, or annoying than those that spent more.
In Munson, the challenged regulation included a percentage restriction similar to the one found in Schaumburg, limiting fundraising expenses to twenty-five percent of total gross income. The regulation, however, also provided for the possibility of a waiver of the restriction “in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions.” Again, the Court held the regulation to be unconstitutional:
The flaw in the statute is not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud.... It is equally likely that the statute will restrict First Amendment activity that results in high costs but is itself a part of the charity’s goal or that is simply attributable to the fact that the charity’s cause proves to be unpopular. On the other hand, if an organization indulges in fraud, there is nothing in the percentage limitation that prevents it from misdirecting funds. In either event, the percentage limitation, though restricting solicitation costs, will have done nothing to prevent fraud.
Munson, 467 U.S. at 966-67, 104 S.Ct. at 2852.
In Riley, the most recent case on this issue, the Court struck down regulations that defined the prima facie “reasonable fee” that a professional fundraiser may charge as a percentage of the gross revenues solicited and that required professional fundraisers to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations. Relying on Schaumburg and Munson, the Court held: “Our prior cases teach that the solicitation of charitable contributions is protected speech and that using percentages to decide the legality of the fundraiser’s fee is not narrowly tailored to the State’s interest in preventing fraud.” 487 U.S. at 789, 108 S.Ct. at 2673.
In all of these cases, the Supreme Court has acknowledged the legitimate state interest in regulating this type of speech to prevent fraud and misrepresentation. See Riley, 487 U.S. at 792, 108 S.Ct. at 2675; Schaumburg, 444 U.S. at 636-37, 100 S.Ct. at 835-36. This regulation, however, must be narrowly tailored to further that interest without unnecessarily intruding upon the charities’ right of free speech. Riley, 487 U.S. at 792, 108 S.Ct. at 2675; Telco, 885 F.2d at 1230. The question in this case is whether the Solicitation Act is sufficiently tailored to satisfy the constitutional requirements protecting free speech, due process, and equal protection under the law.
The Act differs from the statutes in the Supreme Court cases discussed above in that it neither requires nor prohibits the spending of any percentage of revenue or expenditures in any particular manner. The Act does require that expenditures “be related in a primary degree to [the] stated purpose (programs and activities) described in solicitations,” but it does not restrict the percentage spent for fundraising and administration.
The Act does mention “percentages” of total expenditures in two sections. First, charitable organizations are required to disclose “upon request of the person solicited, the estimated percentage of the money collected which will be applied to the cost of solicitation and administration or how much of the money will be applied directly for the charitable purpose_” W.Va.Code § 29-19-8. Second, section 29-19-7 requires the filing of written contracts between professional fundraising counsel and the organization. If there is no written contract, the section requires the filing of a written statement in lieu of such contract. This statement must “provide the amount, percentage, or other method of compensation to be received by the professional solicitor or professional fund-raising counsel....” Each of these provisions will be discussed below.
In Riley v. National Federation of the Blind of North Carolina, Inc., as noted above, the Supreme Court invalidated a North Carolina regulation requiring professional fundraisers to disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous twelve months that were actually given to charity. The Court reasoned that such a requirement constituted "compelled speech" in violation of the first amendment. 487 U.S. at 795-800, 108 S.Ct. at 2676-79. Another part of the North Carolina regulations, very similar to section 29-19-8 of the West Virginia Code, required the fundraiser to disclose this percentage information upon request. This provision was not challenged by the plaintiffs in Riley and thus was not before the Court. The Court, nevertheless, noted, "[O]f course, a donor is free to inquire how much of the contribution will be turned over to the charity. ~.. [I]f the solicitor refuses to give the requested information, the potential donor may (and probably would) refuse to donate." Id. at 799, 108 S.Ct. at 2679. We wholeheartedly agree with this observation and therefore find neither any infringement nor compulsion of one's speech in this language of W.Va.Code § 29-19-8.
A state's regulations can require a charity to disclose its financial statements. This disclosure fosters the substantial state interests in informing the public and preventing fraud without being unduly burdensome. Financial statements document an organization's activities and are necessary for regulators and interested donors to monitor any potential mismanagement or fraud. Furthermore, any responsible organization will maintain financial records for its own internal controls. The requirement in section 29-19-7 that charities file solicitation contracts or statements summarizing the terms of such contracts provides only greater detail and description to information already disclosed on the expense side of the charity's income statement. Therefore, this requirement does not violate the Fund's first amendment rights.
In addition to these disclosure requirements, the three criteria in section 29-19-8 also serve the State's interest in preventing fraud and misrepresentation. A state can require charities soliciting funds within its borders to accurately describe their mission and how the donations will be used. It can also require oversight of fundraising activities and prohibit undisclosed conflicts of interest that might affect the operations of the charity. Any charity "exercising ordinary common sense can sufficiently understand and comply with" these provisions. United States Civil Service Comm'n v. Nat'l Assoc. of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973) (describing standard for unconstitutional vagueness). Further, one can understand the necessity for these requirements to "prevent deceptive and dishonest statements and conduct in the solicitation and reporting of funds for or in the name of charity." W.Va.Code 29-19-5. Therefore, we do not find the substantive requirements of the Act to be facially unconstitutional.
However, in addition to its arguments that the Act's requirements are unconstitutional on their face, the Fund also claims that the Secretary's office applied the Act unconstitutionally by actually using a percentage limitation in rejecting the Fund's registration statement. In contrast, the State asserts that it examined the percentage of expenditures used for fundraising purposes only as one signal that further inquiry into possible fraudulent conduct might be necessary. Because we find that the Solicitation Act is facially unconstitutional for due process reasons, we need not resolve this factual dispute in this case. We do note, however, that even if the Act was constitutional, any denial of a charity’s registration based, even in part, upon the charity’s percentage . of expenditures for administrative or fundraising expenses would violate the first amendment as construed in Schaumburg, Munson, and Riley.
IV.
The Fund also contends that the Act violates the fourteenth amendment because it contains inadequate procedural protections for those denied a license to solicit charitable funds. If the Secretary denies a charity’s registration statement, the charity cannot solicit funds in the state unless that denial is reversed. W.Va.Code § 29-19-13(a). Within fifteen days of the denial, the charity can request a hearing before the Commission, which must be held within fifteen days from the date of the request. W.Va.Code § 29-19-9(d). If the Commission upholds the Secretary’s decision, the charity may seek judicial review of the Commission’s decision pursuant to the West Virginia Administrative Procedures Act, W.Va.Code § 29A-5-4. During the time a charity is awaiting a judicial determination of the correctness of the administrative denial of the registration, the charity does not have a license to solicit funds and thus cannot solicit in West Virginia.
We find that these procedures constitute a prior restraint on a charity’s speech. The State argues that these regulations apply only after a violation by the charity and therefore are not a prior restraint. The Supreme Court, however, has rejected this distinction, stating that “whether the [charitable solicitation licensing requirement] regulates before- or after-the-fact makes little difference,” because “the chill on the protected activity is the same.” Munson, 467 U.S. at 969, 104 S.Ct. at 2853. Elsewhere in the Munson opinion, the Court explained:
Our cases make clear that a statute that requires ... a “license” for the dissemination of ideas is inherently suspect. By placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech.
Id. at 964 n. 12, 104 S.Ct. at 2851 n. 12; see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963) (“Any system of prior restraints of expression comes to the Court bearing a heavy burden against its Constitutional validity.”).
The Supreme Court has enunciated three due process protections required for any prior restraint on speech. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (invalidating requirement of state license prior to public screening of films). First, the state must initiate judicial action to restrict a person’s first amendment right, and the state must have the burden of proof in the action. Second, any regulatory act must provide assurance that the free exercise of protected speech will not be delayed while the state seeks judicial review. Third, judicial review must be prompt.
In the present case, the State can, and did, prohibit the Fund’s solicitation activities without first bringing any judicial action. Under the Solicitation Act, it is the charity that must seek an administrative hearing and judicial review after its registration is denied. In addition, the Act does not specify who bears the burden of proof in these proceedings. Moreover, the Fund remains unable to solicit funds while judicial review is pending. Consequently, the Act, on its face, does not satisfy the requirements of Freedman and thus violates the Fund’s fourteenth amendment right of due process.
In light of the above discussion, we find no reason to reach the Fund’s final contention that the Act violates its fourteenth amendment right to equal protection.
V.
In summary, we find that, although the Act on its face does not violate the Fund’s first amendment right of free speech, its procedures do not afford the Fund due process as guaranteed by the fourteenth amendment. Accordingly, we reverse the decision of the district court and hereby direct the district court to enjoin enforcement of the Act.
SO ORDERED.
. The Secretary, in its investigation, and the Commission on Charitable Organizations, on appeal, found that there were conflicts of interest on the Fund’s Board because: (1) the Fund contracted with a corporation while a member of the Fund’s Board was an employee of that corporation; (2) the Fund contracted with another corporation owned by the daughter of the Fund’s two officers; and (3) the Fund's two officers were also paid employees of the Fund.
. Organizations that (1) "solicit only within the membership of the organization by the members thereof,” W.Va.Code § 29-19-6(a)(4), and designated types of organizations that (2) do not employ a professional solicitor or fund-raising counsel or do not receive in excess of $ 10,000 during a calendar year, W.Va.Code § 29-19-6(b), are exempt from registration.
. The Court, however, held that a requirement that a fundraiser disclose his employer's name and address and his professional status would withstand first amendment scrutiny. 487 U.S. at 799 n. 11, 108 S.Ct. at 2679 n. 11.
. In Telco Communications, Inc. v. Carbaugh, this court affirmed a Virginia statute requiring professional solicitors to disclose in writing that financial statements for the last fiscal year were available from the Virginia Office of Consumer Affairs. 885 F.2d at 1231. The West Virginia Act contains a similar requirement at W.Va. Code § 29-19-8(e).
. This same need for financial statements by regulators and investors underlies disclosure requirements for publicly held corporations. See, e.g., 17 C.F.R. §~ 240.13a-1, 240.14a-3, 240.15d-
. As further explained in this opinion, the percentage calculations in these statements cannot be used to deny the renewal of a charity's license to solicit, and, therefore, the relevance of this level of detail is unclear. We do not, however, find that this requirement violates the first amendment.
. Judicial review of the Commission’s decision is limited to a review of the record developed before the commission. W.Va.Code § 29A-5-4(f).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
sc_issuearea
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
MARKS et al. v. UNITED STATES
No. 75-708.
Argued November 1-2, 1976
Decided March 1, 1977
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Stewart and Marshall, JJ., joined, post, p. 197. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 198.
Robert Eugene Smith argued the cause for petitioners. With him on the brief were Gilbert H. Deitch and Andrew Dennison.
Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Thornburgh and Jerome M. Feit.
Mr. Justice Powell
delivered the opinion of the Court.
This case presents the question, not fully answered in Hamling v. United States, 418 U. S. 87 (1974), whether the standards announced in Miller v. California, 413 U. S. 15 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U. S. 942 (1976), to resolve a conflict in the Circuits.
I
Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U. S. C. § 1465, and with conspiracy to transport such materials, 18 U. S. C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decided Miller v. California, supra, and its companion cases. Miller announced new standards for “isolat[ing] ‘hard core’ pornography from expression protected by the First Amendment.” 413 U. S., at 29. That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 129-130, and n. 7 (1973), decided the same day as Miller. See Hamling v. United States, supra, at 105, 113-114.
Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is “utterly without redeeming social value.” 383 U. S., at 418. Under Miller the comparable test is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment—much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution’s ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. 520 F. 2d 913 (1975). We now reverse.
II
The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U. S. 309, 344 (1915). But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U. S. 347 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court:
“[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id., at 353-354.
Similarly, in Rabe v. Washington, 405 U. S. 313 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied.
Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs. The Court of Appeals rejected this argument. It noted—correctly—that the Memoirs standards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. By this line of reasoning, one must judge whether Miller expanded criminal liability by looking not to Memoirs but to Roth v. United States, 354 U. S. 476 (1957), the last comparable plenary decision of this Court prior to Miller in which a majority united in a single opinion announcing the rationale behind the Court’s holding. Although certain language in Roth formed the basis for the plurality’s formulation in Memoirs, Roth’s test for distinguishing obscenity from protected speech was a fairly simple one to articulate: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law.
But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” Gregg v. Georgia, 428 U. S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U. S., at 421, 424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only “hardcore pornography” may be suppressed. Id., at 421. See Ginzburg v. United States, 383 U. S. 463, 499 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions. Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were “utterly without redeeming social value,” and otherwise satisfied the stringent Memoirs requirements.
Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller—whether the work “lacks serious literary, artistic, political, or scientific value”—expanded criminal liability. The Court in Miller expressly observed that the “utterly without redeeming social value” test places on the prosecutor “a burden virtually impossible to discharge under our criminal standards of proof.” 413 U. S., at 22. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller.
This case is not strictly analogous to Bouie. The statutory language there was “narrow and precise," 378 U. S., at 352, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden. But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court. Memoirs severely restricted its application. Miller also restricts its application beyond what the language might indicate, but Miller undeniably relaxes the Memoirs restrictions. The effect is the same as the new construction in Bouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards.
We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See, e. g., Buckley v. Valeo, 424 U. S. 1, 40-41 (1976); Smith v. Goguen, 415 U. S. 566, 573 (1974). Section 1465 is such a statute. We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are “utterly without redeeming social value.” At the same time we reaffirm our holding in Hamling v. United States, 418 U. S., at 102, that “any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.”
Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Two Courts of Appeals have found instructions derived from Miller appropriate in prosecutions based on conduct occurring before the Miller decision came down: United States v. Marks, 520 F. 2d 913 (CA6 1975) (the instant case); and United States v. Friedman, 528 F. 2d 784 (CA10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions where Miller instructions were given by the District Court: United States v. Wasserman, 504 F. 2d 1012 (CA5 1974); United States v. Jacobs, 513 F. 2d 564 (CA9 1974); United States v. Sherpix, Inc., 168 U. S. App. D. C. 121, 512 F. 2d 1361 (1975).
In two earlier cases both conduct and trial occurred prior to Miller, and the jury instructions were derived from Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). United States v. Thevis, 484 F. 2d 1149 (CA5 1973) (Thevis I), cert. denied, 418 U. S. 932 (1974); United States v. Palladino, 490 F. 2d 499 (CA1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision in Hamling v. United States, held that Miller did not void all Memoirs-based convictions, but that on review appellants were entitled to all the benefits of both the Miller and Memoirs standards. See Hamling, 418 U. S., at 102. In later cases presenting similar facts, the Fifth Circuit has applied its holding in Thevis I. See, e. g., United States v. Linetsky, 533 F. 2d 192 (1976); United States v. Thevis, 526 F. 2d 989 (1976) (Thevis II), cert. denied, 429 U. S. 928 (1976). See also United States v. Hill, 500 F. 2d 733 (CA5 1974), cert. denied, 420 U. S. 952 (1975). And the Ninth Circuit, following Hamling, has reached the same result. United States v. Cutting, 538 F. 2d 835 (1976) (en banc), cert. denied, 429 U. S. 1052 (1977).
Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973).
Miller held:
“The basic guidelines for the trier of fact must be: (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.
Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court in Miller offered examples of what a State might constitutionally choose to regulate:
“(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.” Id., at 25.
The plurality in Memoirs held that “three elements must coalesce” if material is to be found obscene and therefore outside the protection of the First Amendment:
"[I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U. S., at 418.
Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts.
Both in its brief and at oral argument in this Court the United States contended that petitioners’ convictions under the Miller standards were improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand.
Shortly after Memoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in brief per curiam decisions. Redrup v. New York, 386 U. S. 767 (1967), was the first. At least 31 cases were decided in this fashion. They are collected in Paris Adult Theatre I v. Slaton, 413 U. S., at 82-83, n. 8 (BRENNAN, J., dissenting).
See, e. g., Books, Inc. v. United States, 358 F. 2d 935 (CA1 1966), rev’d per curiam, 388 U. S. 449 (1967); United States v. 35 Mm. Motion Picture Film, 432 F. 2d 705 (CA2 1970), cert. dismissed sub nom. United States v. Unicorn Enterprises, Inc., 403 U. S. 925 (1971); United States v. Ten Erotic Paintings, 432 F. 2d 420 (CA4 1970); United States v. Groner, 479 F. 2d 577 (CA5) (en banc) (the seven dissenting judges and one judge concurring in the result—constituting a majority on this issue—found that Memoirs stated the governing standard), vacated and remanded for further consideration in light of Miller, 414 U. S. 969 (1973); United States v. Pellegrino, 467 F. 2d 41 (CA9 1972); Southeastern Promotions, Ltd. v. Oklahoma City, 459 F. 2d 282 (CA10 1972); Huffman v. United States, 152 U. S. App. D. C 238, 470 F. 2d 386 (1971), conviction reversed on other grounds upon rehearing after Miller, 163 U. S. App. D. C. 417, 502 F. 2d 419 (1974). Cf. Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 (CA3 1969); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F. 2d 1297 (CA7 1973); Luros v. United States, 389 F. 2d 200 (CA8 1968).
The statute provides in pertinent part:
“Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1465.
For this reason, the instant case is different from Rose v. Locke, 423 U. S. 48 (1975), where the broad reading of the statute at issue did not upset a previously established narrower construction.
In Hamling we rejected a challenge based on Bouie v. City of Columbia, ostensibly similar to the challenge that is sustained here. 418 U. S., at 115-116. But the similarity is superficial only. There the petitioners focused on part (b) of the Miller test. See n. 3, supra. They argued that their convictions could not stand because Miller requires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim under Bouie, for part (b) did not expand the reach of the statute. “[T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal.” 418 U. S., at 116.
For the reasons noted in text, the same cannot be said of part (c) of the Miller test, shifting from “utterly without redeeming social value” to “lacks serious literary, artistic, political or scientific value.” This was implicitly recognized by the Court in Harding itself. There the trial took place before Miller, and the jury had been instructed in accordance with Memoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury’s verdict “was supported by the evidence and consistent with the Memoirs formulation of obscenity.” 418 U. S., at 100. We did not avoid that inquiry on the ground that Memoirs had no relevance, as we might have done if Miller applied retroactively in all respects.
The Court of Appeals stated, apparently without viewing the materials, 520 F. 2d, at 923 n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under either Memoirs or Miller. 520 F. 2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court’s conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properly instructed jury, as to this important element of the offense under 18 U. S. C. § 1465.
The Court of Appeals apparently thought that our remand in Miller and the companion cases necessarily meant that Miller standards were fully retroactive. 520 F. 2d, at 920. But the passage from Hamling quoted in the text, which simply reaffirms a principle implicit in Miller, makes it clear that the remands carried no such implication. Our 1973 cases were remanded for the courts below to apply the “benefits” of Miller. See n. 3, supra.
In view of our disposition of the case, we have no occasion to reach the other questions presented in the petition.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_state
|
56
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
AMERICAN METHYL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Motor Vehicle Manufacturers Association of the United States, Inc., Automobile Importers of America, Inc., United America Fuels, Inc., Intervenors. AMERICAN METHYL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Automobile Importers of America, Inc., Motor Vehicle Manufacturers Association of the United States, Inc., United American Fuels, Inc., Intervenors.
Nos. 84-1204, 84-1277.
United States Court of Appeals, District of Columbia Circuit.
Argued 29 Oct. 1984.
Decided 4 Dec. 1984.
James W. Moorman, Washington, D.C., with whom Arnold B. Podgorsky and Scott N. Stone, Washington, D.C., were on the brief, for petitioner.
David E. Dearing, Atty., Dept, of Justice, Washington, D.C., with whom Margaret N. Strand, Atty., Dept, of Justice, A. James Barnes, General Counsel, Ralph J. Colleli, Jr. and Gerald K. Gleason, Attys., E.P.A., Washington, D.C., were on the brief, for respondent.
Charles H. Lockwood, II, Detroit, Mich., with whom William H. Crabtree, V. Mark Slywynsky, William L. Weber, Jr. and Thomas L. Arnett, Detroit, Mich., were on the brief of intervenors, Motor Vehicle Manufacturers Association of the United States, et al.
R. Sarah Compton, Washington, D.C., was on the brief of intervenor, United American Fuels, Inc.
Before WILKEY, WALD and SCALIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
In this expedited appeal petitioner American Methyl Corporation challenges the Environmental Protection Agency’s determination that it may reconsider, and if necessary revoke, American Methyl’s waiver to market a methanol/gasoline fuel blend sold as “Petrocoal.” We find that judicial review is appropriate at this time and reverse the agency’s decision that it may revoke waivers under section 211(f) of the Clean Air Act. The Administrator of the EPA is not disabled from regulating Petrocoal, but he may control or prohibit the fuel only through a proceeding complying with the substantive and procedural safeguards of section 211(c) of the Clean Air Act. We remand to the agency for further proceedings in accordance with our judgment and mandate issued 31 October 1984, 746 F.2d 907.
I. Facts
In 1980 American Methyl developed an additive to be used in a methanol/gasoline blend it called Petrocoal. Because methanol costs about forty cents per gallon, Petrocoal costs less than conventional gasoline. The relative inexpensiveness of Petrocoal and other alcohol/gasoline blends— to say nothing of the fact that they may be produced domestically, thereby reducing America’s reliance on foreign sources of petroleum — makes them attractive substitutes for gasoline.
To market the Petrocoal additive, American Methyl sought a waiver from the Administrator of the Environmental Protection Agency. Under section 211(f)(1) of the Clean Air Act, it is
unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use, of, any fuel or fuel additive for general use in light duty motor vehicles... which is not substantially similar to any fuel or fuel additive utilized in the certification of any... [1975 or later model year vehicle or engine].
The impetus for this section was the fear that new fuel and new fuel additives, particularly an organomanganese compound known as MMT, would impair the performance of emission control devices in cars and light duty trucks. As Senator Muskie, chief sponsor of the Senate bill, put it: “This action was absolutely essential... [given] the alarming degrees to which MMT, and potentially hundreds of other additives, threaten our entire air pollution control program.” The Administrator of the EPA may waive the section 211(f)(1) prohibition if the manufacturer establishes that the fuel or additive “will not cause or contribute to a failure of any emission control device or system... to achieve compliance by the vehicle” with applicable emissions standards.
American Methyl applied for a waiver on 20 February 1981, which the Administrator granted on 28 September of that year. American Methyl’s expenditures in developing and marketing Petrocoal totalled nearly one million dollars.
Just over two months later, on 4 December 1981, a trade association of automobile manufacturers known as the Motor Vehicle Manufacturers Association filed a petition for administrative reconsideration of the Petrocoal waiver with EPA and another petition for review of the waiver in this court. Despite questions relating to the high alcohol content and ratio of methanol to cosolvents in Petrocoal, and the possible presence of a corrosive additive, CV-100, in certain test samples, the EPA did not act on MVMA’s petition.
Over a year later, on 22 February 1983, MVMA filed a supplemental petition for reconsideration accompanied by new data purporting to show that Petrocoal caused automobiles to exceed limits.for evaporative emissions of hydrocarbons.
Prompted by the recently compiled data in MVMA’s supplemental petition, the Administrator on 2 May 1983 published a notice in the Federal Register that he was “considering whether an administrative action is appropriat [sic] to modify or revoke the waiver under section 211(f) or to control or prohibit sale of Petrocoal under section 211(c), or whether the waiver should stand as granted.” Section 211(c), in contrast to section 211(f), imposes a number of substantive and procedural requirements the agency must satisfy before controlling or prohibiting a fuel or fuel additive. The Administrator’s notice elicited no response from American Methyl.
Close to another year passed before the Administrator, on 16 March 1984, proposed to revoke the Petrocoal waiver; the decision was published in the Federal Register on 28 March 1984 — nearly two-and-a-half years after the Petrocoal waiver was initially approved. A principal basis of the Administrator’s decision was the new study reported by MVMA which claimed that Petrocoal caused automobiles to exceed limits on evaporative emissions of hydrocarbons. The notice stated that “[i]n reconsidering the Petrocoal waiver, the standard for review of the newly submitted and developed information is that prescribed in section 211(f)(4) of the Act.”
Almost at the same time, on 27 March 1984, the parties to the appeals from approval of the original waiver in 1981 jointly moved to remand the record to EPA, so that the agency could take further administrative action with respect to the waiver. On 3 April this court granted the motion.
One month later, however, on 3 May 1984, American Methyl formally requested the Administrator to rescind his proposal to revoke the Petrocoal waiver, on the ground that section 211(f) does not permit him to reconsider or revoke a waiver. In a letter dated 8 June 1984, the EPA General Counsel denied American Methyl’s request and asserted the agency’s inherent authority to revoke a waiver pursuant to section 211(f). He also explained that under section 211(f)(4) American Methyl would have to justify the validity of the Petrocoal waiver ab initio:
Finally, with regard to your question as to which party has the burden of proof in these proceedings, the March 28, 1984, Federal Register notice clearly states that the standard of review to be used in the reconsideration proceeding will be the same as that used in evaluating waiver applications under section 211(f)(4). 49 Fed.Reg. 11885. Accordingly, the burden of establishing that Petrocoal meets the criteria for a valid waiver specified in section 211(f)(4), taking into account all available information, should be borne by American Methyl.
The General Counsel confirmed, in a letter dated 22 June 1984, that “in keeping with my responsibilities as General Counsel” the 8 June letter, “expressed the Agency’s official position on these legal matters.”
American Methyl filed a petition for review of EPA’s notice of proposed revocation on 25 May 1984, and of the 8 June letter on 2 July 1984. American Methyl claimed that its sales, which had been at a record high level before EPA threatened to revoke the Petrocoal waiver under section 211(f), had virtually ceased in a matter of months.
On 13 July, American Methyl moved this court to stay a hearing on EPA’s proposal to revoke the Petrocoal waiver, which had been scheduled for 31 July. EPA opposed the motion and on 20 July moved to dismiss both petitions for review. A motions panel composed of two other judges of this court, by order dated 27 July, granted American Methyl’s motions to consolidate and to stay EPA’s proposed revocation proceeding and denied the agency’s motion to dismiss.
This appeal presents the following three issues: first, is judicial review appropriate at this stage in the administrative process; second, should American Methyl be es-topped from challenging EPA’s assertion of revocation authority; and third, does section 211(f) of the Clean Air Act empower EPA to revoke the Petrocoal waiver?
We find judicial review appropriate at this time and decline to estop American Methyl from challenging the agency’s interpretation of its statutory powers. We hold that the Administrator may not revoke the Petrocoal waiver pursuant to section 211(f), but may forbid the marketing of Petrocoal only pursuant to his authority to control or prohibit fuel and fuel additives under section 211(c).
II. Analysis
At stake in this procedural battle is the applicability of certain substantive and procedural safeguards to a proceeding in which the Environmental Protection Agency proposes to revoke American Methyl’s waiver to market Petrocoal. Under American Methyl’s interpretation of the Clean Air Act, EPA is authorized to control or prohibit the marketing of Petrocoal only under section 211(c); that section requires EPA to follow specific substantive and procedural guidelines. In contrast, EPA interprets section 211(f), under which the Petrocoal waiver was originally granted, to authorize revocation of the Petrocoal waiver irrespective of the guidelines specified in section 211(c); section 211(f), which doés not admit the existence of a revocation procedure, not surprisingly fails to regulate the conduct of such proceedings. If section 211(f) is construed as EPA would have it, no particular substantive or procedural requirements (apart from whatever procedural minima may be required by the Constitution’s due process clause) need be followed.
A. Timing of Judicial Review
EPA contends that review of the agency’s purported authority to revoke waivers is premature, on the grounds that the agency’s decision lacks finality and is not ripe for review and that American Methyl has failed to exhaust its administrative remedies. These points formed the basis of a motion to dismiss by EPA, which was considered and rejected by a motions panel of this court last July. There is no theoretical obstacle to our reconsidering the motions panel decision, which, as is usual, was rendered without oral argument and (since it was not dispositive of the appeal) with the participation of only two judges. Moreover, not all of the present panel agree with the motions panel’s disposition. However, given the circumstance that this agency proceeding has already been delayed several times by judicial action, and that the motions panel action has extended the present delay still further; and given what seems to us the clarity of the merits of the matter, which will ultimately require the agency’s action to be set aside if the present challenge is dismissed; we are not inclined to revisit the issues of finality, ripeness, and exhaustion, and without further consideration accept the motions panel’s determination as the law of this case.
B. Equitable Estoppel
Besides the asserted prematurity of judicial review, EPA also claims that American Methyl should be estopped from challenging its authority to revoke the Petro-coal waiver. According to the Administrator, equitable estoppel is warranted for two reasons. First, American Methyl waited over a year to challenge EPA’s revocation authority, which the agency first broached in its 2 May 1983 Federal Register notice and to which American Methyl did not object until 20 April 1984. Second, EPA points out that American Methyl joined with other parties to the 1981 appeals in a motion to remand to the agency the record compiled in the original waiver proceeding.
In our view, American Methyl had no obligation to object until EPA made clear that it would proceed under section 211(f). Although the agency’s 2 May Federal Register notice mentioned revocation of the Petrocoal waiver under section 211(f) as one of three possibilities, we do not think American Methyl was required to object immediately to each item on the agency’s laundry-list of tentative options, even if that list is a short one, or forever hold its peace. The contrary holding would encourage appeals every time an agency announced that it was contemplating some arguably objectionable action.
EPA did not elect to proceed under section 211(f) until 16 March 1984, in a Federal Register notice published on 28 March. This notice led to the 3 April remand in which American Methyl acquiesced. That acquiescence was a mistake, but American Methyl objected to the agency less than a month later. Any detriment attributable to that brief delay is de minimis considering the lengthy delays associated with this case.
C. Scope of Judicial Review
Section 307(d)(9) of the Clean Air Act authorizes this court to “reverse any... action [of the Administrator] found to be... (C) in excess of statutory... authority, or limitations, or short of statutory right.” In exercising this power, the Supreme Court has recently admonished us, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., to give “considerable weight” to the “executive department’s construction of a statutory scheme it is entrusted to administer.” Although “courts are the final authorities on issues of statutory construction,” “[i]f... the court determines [that] Congress has not directly addressed the precise question at issue,... the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Notwithstanding the great deference accorded an agency’s interpretation, “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” In this case, the legislative history is inconsistent with the standardless and open-ended authority to revoke waivers — to be asserted in this case nearly two-and-one-half years after the waiver was granted and based entirely on new evidence — which is sought by EPA.
D. The Environmental Protection Agency’s Assertion of Inherent Revocation Authority
Section 211(f) does not state whether waivers granted under subsection (f)(4) may be reconsidered and revoked. According to the legislative history, however, Congress contemplated regulation of fuels and fuel additives so waived into commerce only through proceedings under section 211(c); the legislative understanding thus rejects the implied revocation authority claimed by the EPA. Moreover, the interrelationship of subsections (f) and (c)— with subsection (f) regulating the “first” introduction of fuels and fuel additives into commerce and subsection (c) governing the control or prohibition of fuels and fuel additives already in commerce — gives effect to the requirements of each subsection and comports with Congress’s understanding of their interdependence. Finally, our recognition of authority under section 211(c) to regulate fuels and fuel additives in commerce, to the exclusion of an implied revocation authority under section 211(f), is consistent with past administrative practice and effectuates the objectives of the Clean Air Act.
1. The understanding of Congress
A revealing paragraph in the committee report on the Senate bill suggests that the EPA administrator, once having waived a new fuel or fuel additive into commerce under section 211(f)(4), may not “revoke” a waiver under that same section:
The committee was mindful that the Administrator could choose not to act on the waiver application within the 180 days provided for such action. If the Administrator does fail to act under subsection (d) [now subsection (f) ] to either grant, conditionally grant, or deny the waiver, it does not diminish the Administrator’s power to act against the fuel or fuel additive through the application of the provisions of subsection (c) of this section.
Congress, according to this passage, understood that waivers granted by default could not be revoked; rather, the Administrator must initiate appropriate proceedings pursuant to section 211(c) if he wants to control or prohibit a fuel or fuel additive waived into commerce.
EPA agrees with this reading of the quoted paragraph, but believes its logic is limited to waivers granted automatically after 180 days:
There is absolutely no indication that the committee gave any thought to what remedies EPA might pursue if it appeared that its affirmative decision that the applicant had satisfied section 211(f)(4) had been based on serious factual mistakes. In contrast, waivers granted under the 180-day provision do not involve any affirmative decision that could be called into question or reconsidered later.
EPA’s reading of the Senate Report, however, would have the perverse and presumably unintended effect of according the greatest deference to the least thought-out waivers. To permit revocation only of waivers granted after due consideration would inexplicably insulate from reconsideration waivers granted by operation of law and without any thought on the agency’s part. Waivers granted after the statutorily-prescribed determination that the fuel or fuel additive “will not cause or contribute to a failure of any emission control device or system... to achieve compliance... with emission standards” would be open to revocation at any time, based on any evidence, subject to no substantive or procedural safeguards. We cannot believe that Congress would countenance such an ill-conceived revisory power.
We have held that agencies have an inherent power to correct their mistakes by reconsidering their decisions within the period available for taking an appeal. That period has long expired here. We need not consider what further inherent or implicit authority might exist in the abstract, since, in the present case, Congress has provided a mechanism for correcting error by authorizing under section 211(c) control or prohibition of fuels and fuel additives mistakenly waived into commerce under section 211(f).
Thus, when Congress has provided a mechanism capable of rectifying mistaken actions, in this case by authorizing under section 211(c) control or prohibition of fuels and fuel additives mistakenly waived into commerce under section 211(f), it is not reasonable to infer authority to reconsider agency action. This “ ‘common sense’ ” observation recalls the maxim frequently invoked by the Supreme Court in construing statutes: expressio unius est exclusio alterius, that is, “mention of one thing implies exclusion of another thing.” As the Supreme Court stated in National Railroad Passenger Corporation v. National Association of Railroad Passengers (Amtrak), “ ‘[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’ ” Thus, while Congress may have wanted the Administrator to correct his mistakes, it provided a mechanism sufficient to this task in section 211(c). It further understood this mechanism as the exclusive means by which he was to correct waivers mistakenly granted by default. We therefore see no need to imply authority under section 211(f) to reconsider waivers granted after due deliberation. What suffices to correct waivers mistakenly granted by default should also suffice to correct the (hopefully) far smaller proportion of waivers mistakenly granted after careful consideration.
2. Consistency with the statutory design
The absence of implied revocation authority suggests a straightforward relationship between sections 211(c) and 211(f) which is consistent with the text of the statute and its apparent design: section 211(f) forbids the “first” introduction of new fuels and new fuel additives into commerce; section 211(c) provides for regulation of fuels already in commerce.
Section 211(f)(1) on its face governs every “fuel or fuel additive... first introduce[d] into commerce” or whose concentration in any fuel or fuel additive is increased. Waivers of this prohibition under section 211(f)(4) are required only of these same fuels and fuel additives.
By way of comparison, section 211(c) authorizes the Administrator to “control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive” in order to reduce harmful air pollution and to maintain the performance of emission control equipment. Construing section 211(f) not to authorize revocation of waivers thus leaves no lacuna in the statute: The Administrator is empowered to take action against an offending fuel or fuel additive under section 211(c) if it impairs the performance of pollution control equipment, which is precisely the evil an implied revocation authority would remedy.
Furthermore, our unwillingness to imply revocation authority under section 211(f) is consistent with subsection (f)(4)’s requirement that the Administrator act on a waiver application within 180 days or be deemed to have granted the same. The implication of a standardless revocation authority, exercisable over an indefinite term, would in effect empower the Administrator to deny a waiver after the 180-day period had elapsed, thereby writing the 180-day time limit out of the statute. This revocation power would be exercised, moreover, without regard for the substantive and procedural safeguards afforded by section 211(c) — safeguards which the EPA concedes are applicable to fuels waived into commerce by default by virtue of the paragraph in the Senate Committee Report quoted above. The text and design of section 211 thus support our conclusion that Congress did not authorize the EPA Administrator to revoke waivers granted under section 211(f).
3. Admissions and Administrative Practice of the EPA
Our unwillingness to wrest a standard-less and openended revocation authority from a silent statute is strengthened by examination of EPA’s own commitment to revocation authority — a commitment that has been qualified and tepid at best.
a. Admissions before this Court
In its brief and at oral argument, EPA conceded that a “correct” initial waiver could not be revoked and that any subsequent action against the fuel or fuel additive must perforce be taken in a proceeding under section 211(c). By “correct,” EPA apparently means that the initial waiver must have been warranted by the record compiled at the time the waiver was granted; only if “the original waiver decision was fundamentally wrong because the record, upon re-examination, actually did not support the necessary showings” may the waiver be revoked.
Because there is no issue now before us as to the original administrative record justifying the Petrocoal waiver, however, revocation is unwarranted on the agency’s own view of the statute. In its notice of proposed revocation, EPA advanced three reasons for reconsidering the Petrocoal waiver. Two of the reasons appear to be make-weights by EPA’s own admission; the third is based on new evidence and reflects no deficiency in the agency’s original determination. Since this last reason seemingly prompted the Administrator’s second thoughts about Petrocoal, we consider it first.
The chronology of events, EPA’s notice soliciting comments on whether to reconsider the Petrocoal waiver, and the agency’s notice of proposed revocation, all show that EPA’s principal concern is that cars using Petrocoal will exceed the limits imposed on evaporative emissions of hydrocarbons. Whatever the validity of this concern, it in no way impugns the validity of the original waiver — the Administrator’s concern is based, as he put it, on “new data.” As he stated in his Federal Register notice proposing revocation: “Based on information submitted in response to the May 2, 1983 Federal Register notice, and other information provided to the Agency since the grant of Petrocoal waiver, the Agency is today proposing to revoke that waiver.” The Administrator’s answer to American Methyl’s argument that expiration of the sixty-day period for judicial review precludes reconsideration, leaves no issue before us as to the adequacy of the original waiver. In a footnote, the Administrator pointed out that the sixty-day time limit was inapplicable because the information on evaporative emissions became available after the period had expired:
Moreover, regardless of the merits of American Methyl’s argument with respect to MVMA’s original petition for reconsideration, the petition as supplemented and the comments in response to the May 2, 1983 Federal Register notice clearly present new information not available to the Agency during the comment period....
EPA’s primary reason for revoking American Methyl’s waiver does not relate to a defect in the original grant; thus, under EPA’s own interpretation of its powers, a revocation proceeding is not warranted in this case.
EPA’s remaining two reasons for reconsidering the Petrocoal waiver, although they relate to the original waiver grant, are red herrings. In six trim paragraphs of his eight-page, triple-columned, single-spaced notice of proposed revocation, the Administrator now finds that he had no basis for approving the particular alcohol blend used in Petrocoal when he approved the waiver in 1981. Intervenors Motor Vehicle Manufacturers Association raised precisely this contention in their petition for administrative reconsideration filed on 4 December 1981, yet EPA took no action until presented with new data on evaporative emissions a year-and-a-half later. Tellingly, if the Administrator was concerned about the high alcohol content of Petrocoal, one would hardly expect him to dismiss out of hand American Methyl’s offer to reduce the percentage of alcohol.
In the pages of the Federal Register the Administrator also professes concern over whether some test samples of Petrocoal contained the metallic additive CV-100. The presence of the additive in test samples but not in the fuel actually marketed could mean that Petrocoal at the pump fails to perform like the Petrocoal submitted for testing and approved by EPA. Yet in a letter denying American Methyl a hearing on this question, the agency declared that “the issue itself is not significant enough to warrant imposition of full trial-type hearing procedures” and adopted the analysis in American Methyl’s “memorandum of April 27,” which recognized that “the presence of CV-100 is at best an ancillary matter, unlikely to influence EPA’s final decision.”
Because the Administrator points to no defects in his original approval of the Pe-trocoal waiver, he may not — according to his own interpretation of section 211(f) — reopen that waiver. He may proceed to regulate Petrocoal, if he thinks it necessary, under the powers conferred upon him by section 211(c).
b. Prior administrative practice
Independent of EPA’s admissions before this court, the agency’s prelitigation administrative practice belies its professed belief in an implied revocation authority. In seven years of administering section 211(f), American Methyl is the first manufacturer subjected to a revocation proceeding. In a prior case, when assertion of such authority would have been appropriate, the Administrator made no mention of it and instead relied on his power under section 211(c), a course of conduct exemplifying the understanding of section 211 we adopt today.
A brief recitation of a proceeding involving the Sun Petroleum Products Company exposes the novelty of EPA’s construction of section 211. The Administrator conditioned the grant of Sun Petroleum’s waiver on disclosure of a proprietary additive’s chemical composition; he reserved the right to “revoke the waiver if, after receiving a petition for reconsideration, he determines that based on new data and information not available prior to the public disclosure of the proprietary additive’s chemical composition, the applicant is not entitled to the waiver.”
General Motors subsequently filed a petition for reconsideration in the Sun Petroleum proceeding. Because the initial waiver provided for reconsideration, the Administrator applied the same standard of review that he applied to Sun Petroleum’s initial application. The Administrator denied General Motor’s petition and thereby removed the revocation contingency in Sun Petroleum’s waiver. Revealingly, in describing his remaining authority under the Clean Air Act, the Administrator said:
This [waiver] does not preclude GM or others from continuing to research this question and developing sufficient date [sic] to support a future rulemaking in this area. I retain the authority under Section 211(c) of the Act to control or prohibit this blend or other alcohol/gasoline blends if new data are presented to warrant such action,
Taking EPA’s past administrative practice as implementing the proper reading of section 211, the agency is without authority to revoke a noncontingent waiver, based on new evidence, nearly two-and-one-half years after its initial approval. Combined with Congress’s understanding of section 211 and the consistency of that understanding with the statutory design, the Sun Petroleum precedent constitutes a tacit admission that section 211(f) does not impliedly authorize the reconsideration of waivers in these circumstances.
4. Objectives of the Clean Air Act
Our inquiry ends upon ascertaining that the Administrator’s reading of his authority under section 211(f) is contrary to what Congress intended; we note, however, that our interpretation furthers both procedural certainty as well as the public’s need for protection from harmful air pollution.
By upholding Congress’s disinclination to grant EPA an unguided and open-ended power to revoke waivers, we ensure that entities subject to regulation under section 211 know what is expected of them. Protecting the legitimate expectations of fuel manufacturers comports with basic fairness; it also encourages investment in technology to create more efficient, less costly, and less polluting substitutes for conventional fuels.
Like the sword suspended by a hair above the courtier Damocles, the Administrator’s claimed revocation authority would pose an ever-present threat to the marketing of new fuels, fostering great uncertainty in the business community. Technologically-advanced fuels could be taken off the market at any time, and neither specified hearing procedures nor rules of repose would cabin the Administrator’s discretion. This risk is hardly typical of commercial operations in a regulated economy. Moreover, because the manufacturer’s product is assumed undeserving of waiver, the presumption is against the continued existence of his business even if his waiver is challenged with evidence gathered years after heavy capital investment — an extraordinary risk for a commercial entity to bear, as agency counsel conceded at oral argument.
Because a manufacturer could never know ex ante whether his product would be available for sale for a sufficient time to recoup his initial investment, he might well decide not to risk his capital in the first place. As a consequence, the public and this nation would suffer from lack of innovation in fuels and fuel additives, to the ultimate detriment of air quality and our national security.
Besides providing procedural certainty, our opinion should also promote more accurate agency decisionmaking in the first instance. Under EPA’s reading of the waiver provision, the agency may permit a waiver to be granted by default after the passage of 180 days and revoke it later if some problem is brought to its attention. Under our reading of section 211(f)(4), however, the agency is motivated to consider a waiver request promptly and thoroughly because it cannot rely on the expedient of a post-grant revocation. The Administrator must do his job well and fast — if he makes a mistake, he must act against the fuel or fuel additive under section 211(c), with its admittedly more cumbersome but congressionally-mandated “procedural safegurads.” Our refusal to imply a power to revoke waivers parallels Congress’s insistence that EPA make a careful, albeit expeditious, decision in the first instance; subsequent proceedings based on new evidence, when substantial investments are at stake, understandably are subject to the more exacting substantive and procedural safeguards contained in section 211(c).
III. Conclusion
Finding an implied power to revoke waivers under section 211(f) of the Clean Air Act contrary to the intention of Congress and the design of that statute, we set aside the Administrator’s notice proposing to revoke the Petrocoal waiver and his notice announcing a public hearing thereon, and reverse the EPA General Counsel’s refusal to terminate the waiver proceeding brought pursuant to section 211(f). We remand this case for further proceedings under section 211(c), if the Administrator deems them desirable, in accordance with our judgment and mandate issued 31 October 1984.
So Ordered.
. Other parties to this appeal include United American Fuels, Inc., intervening on the side of American Methyl, and Motor Vehicle Manufacturers Association, intervening on the side of EPA.
. Clean Air Act § 211(f), 42 U.S.C. § 7545(f) (1982).
. Id. § 211(c), 42 U.S.C. § 7545(c).
. Until 30 June 1982, American Methyl was incorporated under the name Anafuel Unlimited. For the sake of clarity, we refer to the corporation by its current name.
. Affidavit of Ronald Eames, Appendix I at 84, 85 [hereinafter cited as App.].
. Clean Air Act § 211(f), 42 U.S.C. § 7545(f) (1982).
. Id. § 211(f)(1), 42 U.S.C. § 7545(f)(1).
. See H.R.Rep. No. 294, 95th Cong., 1st Sess. 308, reprinted in 1977 U.S.Code Cong. & Ad.News 1077, 1387; S.Rep. No. 127, 95th Cong., 1st Sess. 90 (1977), reprinted in 3 Congressional Research Serv., A Legislative History of the Clean Air Act Amendments of 1977, at 1371, 1464 (Comm.Print 1978) [hereinafter cited as Legislative History].
. 123 Cong.Rec. 18,034 (1977) (statement of Sen. Muskie), reprinted in 3 Legislative History, supra note 8, at 759.
. Clean Air Act § 211(f)(4), 42 U.S.C. § 7545(f)(4) (1982).
. See 46 Fed.Reg. 21,695 (1981) (notice of application for Petrocoal waiver).
. See id. at 48,975 (1981) (notice of grant of Petrocoal waiver). The waiver provides that the percentage of total alcohol in Petrocoal cannot exceed fifteen percent, that the ratio of methanol to cosolvents (other alcohols) cannot exceed 6.5 to 1, that the finished fuel must meet the standards of the American Society for Testing and Materials, and that Petrocoal must comply with EPA regulations applicable to unleaded gasoline. See id. at 48,976.
. See Affidavit of Ronald Eames, App. I at 84, 86.
. See App. II at 30 (excerpts from Motor Vehicle Manufacturers Association’s petition for reconsideration of Petrocoal waiver).
. See Motor Vehicle Mfrs. Ass’n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. filed 4 Dec. 1981) (petition for review). General Motors Corporation also filed a petition for review.
. See App. II at 30, 35.
. EPA conceded the validity of the first two objections later in the litigation. See Brief for Respondent at 15, Motor Vehicle Mfrs. Ass’n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. remanded to agency 3 Apr. 1984).
. See App. II at 38, 42-47 (excerpts from Motor Vehicle Manufacturers Association’s supplemental petition for reconsideration of Petrocoal waiver).
. 48 Fed.Reg. 19,779, 19,780 (1983) (request for comments on petition for reconsideration of Petrocoal waiver).
. See Clean Air Act § 211(c), 42 U.S.C. § 7545(c) (1982). Before the Administrator may “control or prohibit” a fuel or fuel additive under § 211(c), he must among other things (1) consider all pertinent scientific, medical, or economic data; (2) prepare a cost/benefit analysis (for regulation protecting emission controls); (3) formally declare that the fuel or fuel additive causes or contributes to harmful air pollution or would significantly impair the effective functioning of emission control systems; and (4) formally declare that regulation would not result in use of more dangerous additives. See id.
. See 49 Fed.Reg. 11,879, 11,885 (1984) (notice of reconsideration and proposed revocation of Petrocoal waiver).
. See id. at 11,880-81.
. See id. at 11,885.
. See Joint Motion for Remand of the Record, Motor Vehicle Mfrs. Ass'n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. remanded to agency 3 Apr. 1984).
. See Motor Vehicle Mfrs. Ass'n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. 3 Apr.1984) (order granting joint motion to remand).
. See App. I at 31, 32.
. See id. at 63, 63-66.
. Id. at 69 (footnote omitted).
. See id. at 75, 75 n. 1.
. See American Methyl Corp. v. Environmental Protection Agency
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_majvotes
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2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
HAIGLER v. UNITED STATES.
No. 3735.
United States Court of Appeals Tenth Circuit.
Feb. 9, 1949.
BRATTON, Circuit Judge, dissenting.
Ralph Carr, of Denver, Colo., for appellant.
Henry E. Lutz, of Denver, Colo. (Max M. Bulkeley, of Wray, Colo., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
The appellant, Burt E. Haigler, appeals from a conviction and sentence for wilfully, knowingly and unlawfully attempting to defeat and evade his income tax liability for the calendar year 1941, by filing or causing to be filed a false and fraudulent return in violation of Section 145(b) of the Internal Revenue Code, 26 U.S.C.A. § 145(b). The principal, and we think decisive, question here is whether the trial court erroneously excluded proffered testimony tending to negative any wilful intent to defeat and evade his income tax liability.
Wilfulness being an essential element of the offense charged, evidence showing or tending to show lack of it, is a defense, and is admissible for that purpose. See Dearing v. United States, 10 Cir., 167 F.2d 310; One 1941 Buick Sedan v. United States, 10 Cir., 158 F.2d 445; Hargrove v. United States, 5 Cir., 67 F.2d 820, 90 A.L.R. 1276; Annotation 90 A.L.R. 1280. We have said that where, as here, motive or bad purpose is an essential element of the offense charged, the accused may not only directly testify that he had no such motive or purpose, but he may, within rational rights, “buttress such statement with testimony of relevant circumstances, including conversations had with third persons or statements made by them, tending to support his statement * * Miller v. United States, 10 Cir., 120 F.2d 968, 980. See also Underhill’s Criminal Evidence, 4th Ed., Sec. 138.
The proof in support of the indictment was to the effect that the appellant is a rancher and sheepman living near Monte Vista, Colorado, where he operates a large sheep ranch, and about 2000 acres of irrigated land. As a part of his ranching activities, he also grazes large herds of sheep in Eastern Colorado and Western Kansas. During the year 1941, he received approximately $19,000, which he did not include in his income tax return for that year. Approximately $15,000 of this amount was the proceeds of the sale of some old ewes, some with lambs, then on pasture in Western Kansas. This money was deposited in the Beaty Bank at Manzanola, Colorado, where he had never previously done any banking business. $2,114.82 was represented by a check dated October 13, 1941, for sheep sold in Kansas City, which was not deposited in the First State Bank of Alamosa, where he usually did business, until February 19, 1942; a check in the sum of $171 for pelts; another for $450 for sheep; 'and another check for $78.33, which he cashed and did not deposit. The proof showed that this additional income, together with the returned income of $30,001.99, would increase his tax liability for the year 1941, approximately $10,000.
For the purp’ose of showing intent and motive, the government also introduced evidence to the effect that appellant failed to include $6,780 of his income for 1939 in his return for that year, and that this sum, in the form of a check, had likewise been deposited in a bank where he was not accustomed to doing business.
Cross-examination of government witnesses developed the fact that in the Fall of 1941, appellant purchased approximately $13,000 worth of young sheep, giving a check therefor on his account in the Beaty Bank; that some time in April or May of 1942, after his income tax return had been prepared and filed, he told Mr. Carter, his accountant, on the streets of Monte Vista, that he had about $5,000 in a bank in the Arkansas River Valley which he had not reported; that Carter then told him it would make a material difference in his tax liability, and that he should-file an amended return; that because of the press of business in Colorado Springs, he did not have time to make it, but if appellant would furnish the data, he would amend the return, and that the appellant agreed to do so.
Carter further testified that he spoke to a deputy collector concerning it, and asked him to prepare an amended return when the information was available, but that no information was furnished to him by Haigler until the Fall of 1942, and no amended return was filed. He also testified that he did not know of the $2,114.82 check until he came, to prepare the return for the taxable year 1942, and did not include it in the 1942 return because it was not income for that year. On cross-examination, counsel for the appellant sought to elicit from the internal revenue agents, Haigler’s explanation to-them for not having returned the income in question. The government objected to this inquiry on the grounds that Haigler was seeking to prove his “side of the story by government witnesses.”
From cross-examination of government witnesses, and from questions asked of defense witnesses, it is plain that the theory of the appellant’s defense was that he understood, and that it was generally understood among sheepmen, that if an old herd of sheep was sold and replaced in the same year with a new herd, the taxable income was the difference between the sale price of the old herd, and the purchase price of the new; that he called to the attention of his auditor the balance of approximately $5,000 in the account about thirty days after his income tax return had been filed, and that he understood or was led to believe, that it would be reflected in an amended return. Counsel for the appellant insisted that this testimony was admissible for the purpose of showing his lack of intent to defeat or evade his income tax liability.
The court, however, sustained objections to any testimony concerning his understanding of the law applicable to his income tax liability, on the grounds that his intent would be judged by his acts, and not by what he understood to be their consequences. In sustaining objections to repeated efforts of counsel to show the appellant’s understanding of his tax liability for the transactions involved, the court made it undeniably plain that' appellant’s understanding of the applicable law was no defense; that “everybody is on notice of what the law is, and ignorance of the law is no excuse, as you know.”
Unconvincing as it may be, this testimony was plainly admissible as bearing upon the essential element of intent to commit the offense charged, and we think it was error to exclude it.
The appellant was permitted to testify that he reported the $5,000 balance in the Beaty Bank to his auditor, who told him that it would be necessary to make a “supplemental return,” and that later in the summer, when he again mentioned it, Carter told him that he -had reported it to Mr. Admire, a deputy collector, who would “make out the assessment.” Fie further testified that the check for $2,114.82 received in October of 1941, and not deposited until February 1942, had been misplaced in an old billfold which he had quit using, but that he did not knowingly fail to deposit it during the year in which it was received for the purpose of evading payment of income tax thereon. He was also permitted to testify that although he received, cashed, and did not report, the other checks involved; he had no purpose or intent to evade the payment of income taxes. He was permitted to testify that in his interviews with the revenue agents during their investigation, he told them that he had deposited the proceeds of the sale of the old ewes in the Beaty Bank to keep it separate from his other accounts, so that he could use it to replace the old ewes with young ewes in the fall, and that he considered this transaction merely a “trade,” for which there was no tax liability.
Thus, appellant was permitted, indirectly, to adduce the theory of his defense by stating what he had told the investigators in explanation of his acts. But this bit of testimony did not change the theory upon which he was tried. In its instructions to the jury, the trial court repeatedly referred to intent as the gist of the offense charged, and of the necessity of finding beyond a reasonable doubt that the appellant intentionally evaded or attempted to evade his income tax liability. The jury was instructed that wilful intent was an essential element of the proof of the crime charged, and that in order to justify a verdict of guilty, it was necessary to prove, not only that a false return had been filed, but that the appellant caused the return to be made with knowledge that it was fraudulent, and with the wilful intention of evading his obligation under the statute. But the jury was also told that every citizen was presumed to know the law, and that ignorance of the law was no-excuse or justification for its violation in any particular.
We think it irreconcilably inconsistent to say in one breath that guilty knowledge of the consequences of the act done is the essence of the offense, and in the next breath say that ignorance of the consequences of those acts is no excuse. See Hargrove v. United States, supra; Annotation, 90 A.L.R. 1280. We are convinced that the appellant did not have -a fair trial, and the judgment is reversed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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sc_lcdisposition
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I
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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.
SCHLAGENHAUF v. HOLDER, U. S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA.
No. 8.
Argued October 13, 1964.
Decided November 23, 1964.
Robert S. Smith argued the cause for petitioner. With him on the briefs was Wilbert Mclnerney.
Erie A. Kightlinger argued the cause for respondent. With him on the brief were Aribert L. Young and Keith C. Reese.
Mr. Justice Goldberg
delivered the opinion of the Court.
This case involves the validity and construction of Rule 35 (a) of the Federal Rules of Civil Procedure as applied to the examination of a defendant in a negligence action. Rule 35 (a) provides:
“Physical and Mental Examination of Persons, (a) Order for examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
I.
An action based on diversity of citizenship was brought in the District Court seeking damages arising from personal injuries suffered by passengers of a bus which collided with the rear of a tractor-trailer. The named defendants were The Greyhound Corporation, owner of the bus; petitioner, Robert L. Schlagenhauf, the bus driver; Contract Carriers, Inc., owner of the tractor; Joseph L. McCorkhill, driver of the tractor; and National Lead Company, owner of the trailer. Answers were filed by each of the defendants denying negligence.
Greyhound then cross-claimed against Contract Carriers and National Lead for damage to Greyhound’s bus, alleging that the collision was due solely to their negligence in that the tractor-trailer was driven at an unreasonably low speed, had not remained in its lane, and was not equipped with proper rear fights. Contract Carriers filed an answer to this cross-claim denying its negligence and asserting “[t]hat the negligence of the driver of the . . . bus [petitioner Schlagenhauf] proximately caused and contributed to . . . Greyhound’s damages.”
Pursuant to a pretrial order, Contract Carriers filed a letter — which the trial court treated as, and we consider to be, part of the answer — alleging that Schlagenhauf was “not mentally or physically capable” of driving a bus at the time of the accident.
Contract Carriers and National Lead then petitioned the District Court for an order directing petitioner Schlagenhauf to submit to both mental and physical examinations by one specialist in each of the following fields:
(1) Internal medicine;
(2) Ophthalmology;
(3) Neurology; and
(4) Psychiatry.
For the purpose of offering a choice to the District Court of one specialist in each field, the petition recommended two specialists in internal medicine, ophthalmology, and psychiatry, respectively, and three specialists in neurology — a total of nine physicians. The petition alleged that the mental and physical condition of Schlagenhauf was “in controversy” as it had been raised by Contract Carriers’ answer to Greyhound’s cross-claim. This was supported by a brief of legal authorities and an affidavit of Contract Carriers’ attorney stating that Schlagenhauf ■had seen red lights 10 to 15 seconds before the. accident, that another witness had seen the rear lights of the trailer from a distance of three-quarters to one-half mile, and that Schlagenhauf had been involved in a prior accident.
The certified record indicates that petitioner’s attorneys filed in the District Court a brief in opposition to this petition asserting, among other things, that “the physical and mental condition of the defendant Robert L. Schla-genhauf is not fin controversy’ herein in the sense that these words are used in Rule 35 of the Federal Rules of Civil Procedure;, [and] that good cause has not been shown for the multiple examinations prayed for by the cross-defendant . ...”
While disposition of this petition was pending, National Lead filed its answer to Greyhound’s cross-claim and itself “cross-claimed” against Greyhound and Schlagen-hauf for damage to its trailer. The answer asserted generally that Schlagenhauf’s negligence proximately caused the accident. The cross-claim additionally alleged that Greyhound and Schlagenhauf were negligent
“[b]y permitting said bus to be operated over and upon said public highway by the said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was [sic] impaired and deficient.”
The District Court, on the basis of the petition filed by Contract Carriers, and without any hearing, ordered Schlagenhauf to submit to nine examinations — one by each of the recommended specialists — despite the fact thát the petition clearly requested a total of only four examinations.
Petitioner applied for a writ of mandamus in the Court of Appeals against the respondent, the District Court Judge, seeking to have set aside the order requiring his mental and physical examinations. The Court of Appeals denied mandamus, -one judge dissenting, 321 F. 2d 43.
We granted certiorari to review undecided questions concerning the validity and construction of Rule 35. 375 U. S. 983.
II.
A threshold problem arises due to the fact that this case was in the Court of Appeals on a petition for a writ of mandamus. Although it is not disputed that we have jurisdiction to review the judgment of the Court of Appeals, 28 U. S. C. § 1254 (1) (1958 ed.), respondent urges that the judgment below dismissing the writ be affirmed on the ground that mandamus was not an appropriate remedy.
“The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction . . . ,” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26.
It is, of course, well settled, that the writ is not to be used as a substitute for appeal, Ex parte Fahey, 332 U. S. 258, 259-260, even though hardship may result from delay and perhaps unnecessary trial, Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 382-383; United States Alkali Export Assn. v. United States, 325 U. S. 196, 202-203; Roche v. Evaporated Milk Assn., supra, at 31. The writ is appropriately issued, however, when there is “usurpation of judicial power” or a clear abuse of discretion, Bankers Life & Casualty Co. v. Holland, supra, at 383.
Here petitioner’s basic allegation was lack of power in a district court to order a mental and physical examination of a defendant. That this issue was substantial is underscored by the fact that the challenged order requiring examination of á defendant appears to be the first of its kind in any reported decision in the federal courts under Rule 35, and we have found only one such modern case in the state courts. The Court of Appeals recognized that it had the power to review on a petition for mandamus the basic, undecided question of whether a district court could order the mental or physical examination of a defendant. We agree that, under these unusual circumstances and in light of the authorities, the Court of Appeals had such power.
The petitioner, however, also alleged that, even if Rule 35 gives a district court power to order mental and physical examinations of a defendant in an appropriate case, the District Court here exceeded that power in ordering examinations when petitioner’s mental and physical condition was not “in controversy” and no “good cause” was shown, both as expressly required by Rule 35. As we read its opinion, the Court of Appeals reached the “in controversy” issue and determined it adversely to petitioner. 321 F. 2d, at 51. It did not, however, reach the issue of “good cause,” apparently considering that it was not appropriate to do so on a petition for mandamus. Ibid.
We recognize that in the ordinary situation where the sole issue presented is the district court’s determination that “good cause”- has been shown for an examination, mandamus is not an appropriate remedy, absent, of course, a clear abuse of discretion. See Bankers Life & Casualty Co. v. Holland, supra, at 383. Here, however, the petition was properly before the court on a substantial allegation of usurpation of power in ordering any examination of a defendant, an issue of first impression that called for the construction and application of Rule 35 in a new context. The meaning of Rule 35’s requirements of “in controversy” and “good cause” also raised issues of first impression. In our view, the Court of Appeals should have also, under these" special circumstances, determined the “good cause” issue, so as to avoid piecemeal litigation and to settle new and important problems.
Thus we believe that the Court of Appeals had power to determine all of the issues presented by the petition for mandamus. Normally, wise judicial administration would counsel .remand of the cause to the Court of Appeals to reconsider this issue of “good cause.” However, in this instance the issue concerns the construction and application of the Federal Rules of Civil Procedure. It is thus appropriate for us to determine on the merits the issues presented and to formulate the necessary guidelines in this area. See Van Dusen v. Barrack, 376 U. S. 612. As this Court stated in Los Angeles Brush Corp. v. James, 272 U. S. 701, 706:
“[W]e think it clear that where the subject concerns the enforcement of the . . . Rules which by law it is the duty of this Court to formulate and put in force . . . it may .... deal directly with the District - Court
See McCullough v. Cosgrave, 309 U. S. 634.
This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the District Court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when “the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” Parr v. United States, 351 U. S. 513, 520; see Bankers Life & Casualty Co. v. Holland, supra, at 382.
m.
Rule 35 on its face applies to all “parties,” which under any normal reading would include a defendant. Petitioner contends, however, that the application of the Rule to a defendant would be an unconstitutional invasion of his privacy, or, at the least, be a modification of substantive rights existing prior to the adoption of the Federal Rules of Civil Procedure and thus beyond the congressional mandate of the Rules Enabling Act.
These same contentions were raised in Sibbach v. Wilson & Co., 312 U. S. 1, by a plaintiff in a negligence action who asserted a physical injury as a basis for recovery. The Court, by a closely divided vote, sustained the Rule as there applied. Both the majority and dissenting opinions, however, agreed that Rule 35 could not be assailed on constitutional grounds. Id., at 11-12, 17. The division in the Court was on the issue ■ of whether the Rule was procedural or a modification of substantive rights. The majority held that the Rule was a regulation of procedure and thus within the scope of the Enabling Act — the dissenters deemed it substantive. Petitioner does not challenge the holding in Sibbach as applied to plaintiffs. He contends, however, that it should not be extended to defendants. We can see no basis under the Sibbach holding for such a distinction. Discovery “is not a one-way proposition.” Hickman v. Taylor, 329 U. S. 495, 507. Issues cannot be resolved by a doctrine of favoring one class of litigants over another.
We recognize that, insofar as reported cases show, this type of discovery in federal courts has been applied solely to plaintiffs, and that some early state cases seem to have proceeded on a theory that a plaintiff who seeks redress for injuries in a court of law thereby “waives” his right to claim the inviolability of his person.
However, it is clear that Sibbach was not decided on any “waiver” theory. As Mr. Justice Roberts, for the majority, stated, one of the rights of a person “is the right not to be injured in one’s person by another’s negligence, to redress infraction of which the present action was brought.” 312 U. S., at 13. For the dissenters, Mr. Justice Frankfurter pointed out that “[o]f course the Rule is compulsive in that the doors of the federal courts otherwise open may be shut to litigants who. do not submit to such a physical examination.” Id., at 18.
These statements demonstrate. the invalidity of any waiver theory. The chain of events leading to an ultimate determination on the merits begins with the injury of the plaintiff, an involuntary act on his part. Seeking court redress is just one step in this chain. If the plaintiff is prevented or deterred from this redress, the loss is thereby forced on him to the same extent as if the defendant were prevented or deterred from defending against the action.
Moreover, the rationalization of Sibbach on a waiver theory would mean that a plaintiff has waived a right by exercising his right of access to the federal courts. Such a result might create constitutional problems. Also, if a waiver theory is espoused, problems would arise as to a plaintiff who originally brought his action in a state court (where there was no equivalent of Rule 35) and then has the case removed by the defendant to federal-court.
We hold that Rule 35, as applied to either plaintiffs or defendants to an action, is free of constitutional difficulty and is within the scope of the Enabling Act. We therefore agree with the Court of Appeals that the District Court had power to apply Rule 35 to a party defendant in an appropriate case.
IV.
There remains the issue of the construction of Rule 35. We enter upon determination of this construction with the basic premise “that the deposition-discovery rules- are to be accorded a broad and liberal treatment,” Hickman v. Taylor, supra, at 507, to effectuate their purpose that “civil trials in the federal courts no longer need be carried on in' the dark.” Id., at 501.
Petitioner contends that even if Rule 35 is to be applied to defendants, which we have determined it must, nevertheless it should not be applied to him as he was not a party in relation to Contract Carriers and National Lead — the movants for the mental and physical examinations — at the time the .examinations were sought. The Court of Appeals agreed with petitioner’s general legal proposition, holding that the person sought to be examined must be an opposing party vis-a-vis the movant (or at least one of them). 321 F. 2d, at 49. While it is clear that the person to be examined must be a party to the case, we are of the view that the Court of Appeals gave an unduly restrictive interpretation to that term. Rule 35 only requires that the person to be examined be a party to the “action,” not that he be an opposing party vis-a-vis the movant'. There is no doubt that Schlagen-hauf was a “party” to this “action” by virtue of the original complaint. Therefore, Rule 35 permitted examination of him (a party defendant) upon petition of Contract Carriers and National Lead (codefendants), provided, of course, that the other requirements of the Rule were met. Insistence that the movant have filed a pleading against the person to be examined would have the undesirable result of an unnecessary proliferation of cross-claims and counterclaims and would not be in keeping with the aims of a liberal, nontechnical application of the Federal Rules. See Hickman v. Taylor, supra, at 500-501.
While the Court of Appeals held that petitioner was not a party vis-á-vis National Lead or Contract Carriers at the time the examinations were first sought, it went on to hold that he had become a party vis-á-vis National Lead by the time of a second order entered by the District Court and thus was a party within its rule. This second order, identical in all material respects with the first, was entered on the basis of supplementary petitions filed by National Lead and Contract Carriers. These petitions gave no new basis for the examinations, except for the allegation that petitioner’s mental and physical condition had been additionally put in controversy by the National Lead answer and cross-claim, which had been filed subsequent to the first petition for examinations. Although the filing of the petition for mandamus intervened between these two orders, we accept, for purposes of this opinion, the determination of the Court of Appeals that this second order was the one before it and agree that petitioner was clearly a party at this juncture under any test.
Petitioner next contends that his mental or physical condition was not “in controversy” and “good cause” was not shown for the examinations, both as required by the express terms of Rulé 35.
The discovery devices sanctioned by Part V of the Federal Rules include the taking of oral and written depositions (Rules 26-32), interrogatories to parties (Rule 33), production of documents (Rule 34), and physical and mental examinations of parties (Rule 35). The scope of discovery in each instance is limited by Rule 26 (b)’s provision that “the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action” (emphasis added), and by the provisions of Rule 30 (b) permitting the district court, upon motion, to limit, terminate, or otherwise control the use of discovery devices so as to prevent either their use in bad faith or undue “annoyance, embarrassment, or oppression.”
It is notable, however, that in none of the other discovery provisions is there a restriction that the matter be “in controversy;” and only in Rule 34 is there Rule 35’s requirement that the movant affirmatively demonstrate “good cause.”
This additional requirement of “good cause” was reviewed by Chief Judge Sobeloff in Guilford National Bank v. Southern R. Co., 297 F. 2d 921, 924 (C. A. 4th Cir.), in the following words:
“Subject to . . . [the restrictions of Rules 26 (b) and 30 (b) and (d)], a party may take depositions and serve interrogatories without prior sanction of the court or even its knowledge of what the party is doing. Only if a deponent refuses to answer in the belief that the question is irrelevant, can the moving party request under Rule 37 a court order requiring an answer.
“Significantly, this freedom of action, afforded a party who resorts to depositions and interrogatories, is not granted to one proceeding under Rules 34 and 35. Instead, the court must decide as an initial matter, and in every case, whether the motion requesting production of documents or the making of a physical or mental examination adequately demonstrates good cause: The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26 (b). Thus, by adding the words ‘. . . good cause . . . the Rules indicate that there must be greater-showing of need under'Rules 34 and 35 than under the other discovery rules.”
The courts of appeals in other cases have also recognized that Rule 34’s good-cause requirement is not a mere formality, but is a plainly expressed limitation on the use of that Rule. This is obviously true as to the “in controversy” and “good cause” requirements of Rule 35. They are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.
Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related. 321 F. 2d, at 51. This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evi-dentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.
Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury, cf. Sibbach v. Wilson & Co., supra, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as-to a plaintiff, but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for. example, where insanity is asserted as a defense to a divorce action. See Richardson v. Richardson, 124 Colo. 240, 236 P. 2d 121. See also Roberts v. Roberts, 198 Md. 299, 82 A. 2d 120; Discovery as to Mental Condition Before Trial, 18 J. Am. Jud. Soc. 47 (1934).
Here, however, Schlagenhauf did not assert his mental or physical condition either in support of or in defense of a claim. His condition was sought to be placed in issue by other parties. Thus, under the principles discussed above, Rule 35 required that these parties make an affirmative showing that petitioner’s mental or physical condition was in controversy and that there was good cause for the examinations requested. This, the record plainly shows, they failed to do.
The only allegations in the pleadings relating to this subject were the general conelusory statement in Contract Carriers’ answer to the cross-claim that “Schlagenhauf was not mentally or physically capable of operating” the bus at the time of the accident and the limited allegation in National Lead’s cross-claim that, at the time of the accident, “the eyes and vision of . . . Schlagenhauf was [sic] impaired and deficient.”
The attorney’s affidavit attached to the petition for the examinations provided:
“That . . . Schlagenhauf, in his deposition . . . admitted that he saw red. lights for 10 to 15 seconds prior to a collision with a semi-tractor trailer unit and yet drove his vehicle on without reducing speed and without altering the course thereof.
“The only eye-witness to this accident known to this affiant . . . testified that immediately prior to the impact between the bus and truck that he. had also been approaching the truck from the rear and that he had clearly seen the lights of the truck for a distance of three-quarters to one-half mile to the rear thereof.
“. . . Schlagenhauf has admitted in his deposition . . . that he was involved in a [prior] similar type rear end collision . . . .”
This record cannot support even the corrected order which required one examination in each of the four specialties of internal medicine, ophthalmology, neurology, and psychiatry. Nothing in the pleadings or affidavit would afford a basis for a belief that Schlagenhauf was suffering from a mental or neurological illness warranting wide-ranging psychiatric or neurological examinations. Nor is there anything stated justifying the broad internal medicine examination.
The only specific allegation made in support of the four examinations ordered was that the “eyes and vision” of Schlagenhauf were impaired. Considering this in conjunction with the affidavit, we would be hesitant to set .aside a visual examination if it had been the only one ordered. However, as the case must be remanded to the District .Court because of the other examinations ordered, it would be appropriate for the District Judge to reconsider also this order in light of the guidelines set forth in this opinion.
The Federal Rules of Civil Procedure should be liberally construed, but they should not be expanded by disregarding plainly expressed limitations. The “good cause” and “in controversy” requirements of Rule 35 make it very apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident — or, as in this case, two accidents — and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule. To hold otherwise would mean that such examinations could be ordered routinely in automobile accident cases. The plain language of Rule 35 precludes such an untoward result.
Accordingly, the judgment of the Court of Appeals is vacated and the case remanded to the District Court to reconsider the examination order in light of the guidelines herein formulated and for further proceedings in conformity with this opinion.
Vacated and remanded.
In all the pleadings McCorkhill was joined with Contract Carriers. For simplicity, both will be referred to as Contract Carriers.
These contentions were renewed by written “Objections and Brief” at the time the corrected order described in note 3 was entered by the District Court.
After the Court of Appeals denied mandamus, the order was corrected by the District Court to reduce the number of examinations to the four requested. We agree with respondent that the issue of that error has become moot. However, the fact that the District Court ordered nine examinations is not irrelevant, together with all the other circumstances, in the consideration of whether the District Court gave to the petition for mental and physical examinations that discriminating application, which Rule 35 requires. See pp. 119-122, infra.
28 U. S. C. § 1651 (a) (1958 ed.): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable' to the usages and principles of law.”
But see Dinsel v. Pennsylvania R. Co., 144 F. Supp. 880 (D. C. W. D. Pa.), where this issue was considered but the District Court, after consideration of the facts, declined to order an examination.
Harabedian v. Superior Court, 195 Cal. App. 2d 26,15 Cal. Rptr. 420 (Dist. Ct. App.).
Kiley, J., dissented on this point, concluding that the record disclosed “no adequate basis” for the District Court’s exercise of its discretion. 321 F. 2d, at 52.
It is not necessary to determine whether or not a refusal by the Court of Appeals to issue the writ, after consideration of the good-cause issue, .would have been reversible error. The issuance of this extraordinary writ is itself generally a matter of discretion. See La Buy v. Howes Leather Co., 352 U. S. 249, 260; Bankers Life & Casualty Co. v. Holland, supra; 6 Moore, Federal Practice, ¶ 54.10[4] (1953 ed.).
28 U. S. C. §2072. (1958 ed.), which provides that the Rules “shall not abridge, enlarge or modify any substantive right . . . .”
For a discussion of these cases, see 8 Wigmore, Evidence, § 2220 (SlcNaughton Rev. ed. 1961). See also 3 Ohlinger’s Federal Practice 490 (1964 ed.).
We have already pointed out, pp. 106-108, supra, that at the time of the first petition, Sehlagenhauf was a named defendant in the original complaint but was not a named cross-defendant in any pleadings filed by Contract Carriers or National Lead.
Although petitioner was an agent of Greyhound, he was himself a party to the action. He is to be distinguished from one who is not a party but is, for example, merely the agent of a party. This is not only clear in the wording of the Rule, but is reinforced by the fact that this Court has never approved the Advisory Committee’s proposed amendment to Rule 35 which would include within the scope of the Rule “an agent or a person in the custody or under the legal control of a party.” Advisory Committee on Rules for Civil Procedure, Report of Proposed Amendments, 41-43 (1955). It is not now necessary to determine to what extent, if any, the term “party” includes one who is a “real party in interest” although not a named party to the action. Cf. Beach v. Beach, 72 App. D. C. 318, 114 F. 2d 479.
As stated in note 3, supra, thereafter a third order was entered which reduced the number of examinations to the four requested.
TTauger v. Chicago, R. I. & Pac. R. Co., 216 F. 2d 501 (C. A. 7th Cir.); Martin v. Capital Transit Co., 83 U. S. App. D. C. 239, 170 F. 2d 811; see Mitchell v. Bass, 252 F. 2d 513 (C. A. 8th Cir.) ; Williams v. Continental Oil Co., 215 F. 2d 4 (C. A. 10th Cir.); Alltmont v. United States, 177 F. 2d 971 (C. A. 3d Cir.).
See note 3, swpra.
Moreover, it seems clear that there was no compliance with Rule 35’s requirement that the trial judge delineate the “conditions, and scope” of the examinations. Here the examinations were ordered in very broad, general areas. The internal medicine examination might for example, at the instance of the movant or its recommended physician extend to such things as blood tests, electrocardiograms, gastro-intestinal and other X-ray examinations. It is hard to conceive how some of these could be relevant under any possible theory of the case.
Cf. Harabedian v. Superior Court, 195 Cal. App. 2d 26, 15 Cal. Rptr. 420 (Dist. Ct. App.). This case should be compared with Laubscher v. Blake, 7 Cal. App. 2d 376, 46 P. 2d 836 (Dist. Ct. App.).
From July 1, 1963, through June 30, 1964, almost 10,000 motor vehicle personal injury cases were filed in the federal district courts. Administrative Office of the United States Courts, Annual Report of the Director, C2 (1964). In the Nation at large during 1963, there were approximately 11,500,000 automobile accidents, involving approximately 20,000,000 drivers. National Safety Council, Accident Facts,'40 (1964 ed.).
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_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.
GREEN, MOORE & CO., Inc., et al. v. UNITED STATES.
Circuit Court of Appeals, Fifth Circuit.
May 4, 1927.
No. 4881.
1. Criminal law <@=»329 — Burden is on defendant to bring himself within exception in criminal statute (Comp. St. § 10216).
The burden held on defendant to bring himself within an exception in Criminal Code, § 49 (Comp. St. § 10216), as to timber depredations on public lands.
2. Public lands <©=»! I— Notice to foreman of adverse ownership of timber land is notice to sawmill corporation committing timber depredations (Comp. St. § 10216).
Notice to the woods foreman of a sawmill corporation of adverse ownership of timber land held notice to the corporation, within Criminal Code, § 49 (Comp. St. § 10216), relating to timber depredations on public lands.
3. Criminal law <@=^938(2) — Evidence obtainable from public records held not newly discovered evidence, warranting new trial.
In prosecution for violating Criminal Code, 8 49 (Comp. St. § 10216), as to cutting and removing timber on public land of the United States, it was not error to refuse a new trial for newly discovered evidence, where such evidence was obtained by an examination of public records.
In Error to the District Court of the United States for the Western District of Louisiana; Louis H. Bums, Judge.
Criminal prosecution by the United States against Green, Moore & Co., Inc., and others. Judgment of conviction, and defendants bring error.
Affirmed.
Charles A. McCoy and Griffin T. Hawkins, both of Lake Charles, La. (McCoy & Moss, of Lake Charles, La., on the brief), for plaintiffs in error.
Philip H. Mecom, U. S. Atty., and J. Fair Hardin, Asst. U. S. Atty., both of Shreveport, La.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
This is an indictment, in three counts, against Green, Moore & Co., a corporation, John A. Lowe, and Crawford Doyle, for violations of seetioii 49 of the Criminal Code (Comp. St. § 10216). The first count charges the defendants with cutting, the second count with removing, and the third count with transporting by tram-road, the timber on particularly described public land of the United States.
According to the government’s evidence, the corporation defendant was operating a sawmill, and the individual defendants were, respectively, its mill manager and woods foreman. The land on which the timber was growing was a narrow strip, of an average width of 88 yards, and extending along a range line for 2 miles and then at right angles along a section line for 1 mile. It had not been surveyed until 1923. Afiter it was surveyed, one Daniel Laughlin entered it under the homestead laws, but before he had acquired title the defendants built a tramroad on the land, and cut and removed the timber. Laughlin became a witness for the government, and on his direct examination stated that he personally notified Doyle that he was homesteading the land. The trial court sustained objections to questions on cross-examination which sought to elicit from this witness answers to the effect that he had filed a suit for trespass against the corporation defendant, in which he alleged that the land belonged to him.
A newspaper, which contained a news item to the effect that the government owned some lands subject to homestead in the parish in which the land in question is located, was admitted in evidence over the objection and exception of defendants, but only for the purpose of showing the fact of publication, and .not for the purpose of showing that defendants had knowledge of that fact. The bill of exceptions also discloses that objections to certain questions on behalf of the prosecution were overruled, and that objections to other questions asked by defendants were sustained; but it does not go further, and disclose what evidence was brought out by the government, or what evidence defendants would have elicited, except for the rulings of the court. In this state of the record, it is impossible to say that defendants suffered any injury by reason of the rulings upon these matters.
Exceptions were taken to several charges, given at the government’s request, which in substance were as follows: (1) Notice to a corporation must be given through some person, and need not be given to an officer of the corporation, but notice to an agent, such as the head of a grading crew, woods foreman, or mill manager, is notice to the corporation; (2) it was not necessary to prove to an absolute eertainty that defendants positively knew of the existence of the survey, but it was sufficient if the testimony showed with reasonable eertainty that they had knowledge enough of the survey to put them on inquiry; (3) defendants could not rely upon their supposed written title alone, if they had other knowledge of conflicting claims; and (4) the government was not required to record its title locally, and was not bound by supposed conflicting titles.
There was a general verdict of guilty, and the court imposed a sentence that was not ■greater than the statute authorizes to be imposed under the second count in the indictment. The sentence was imposed immediately after the verdict was returned. In response to a request of counsel for defendants for time to prepare and submit a motion for a new trial, the court stated that time would be given, but that the motion would be considered as overruled. However, a motion for new trial was filed and overruled about a month later. One of the grounds for a new trial was that of newly discovered evidence; it being claimed that defendants, upon an examination of the land records, had discovered new evidence which tended to show that the strip of land in controversy had been surveyed many years ago, and that the government had parted with its title to it.
The assignments of error are leveled at the first and third counts of the indictment, the rulings on the evidence, the charges of the court as above stated, and the refusal to consider and grant the motion for new trial. No attack is made upon the second count of the indictment. As the verdict was general, and was not in excess of the sentence which could properly be imposed under that count, it becomes unnecessary to consider whether the first and third counts are good. It was suggested in argument that each count should have negatived the idea that defendants were included within the classes, such as miners and agriculturists, that are excepted from the penal provisions of the statute. But it is well settled that the burden was upon defendants of bringing themselves within the exception. McKelvey v. United States, 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301. It was proper for defendants to prove that the witness Laughlin had brought a suit against the corporation defendant, in order to show his interest; but the error was harmless, since the interest of that defendant was undisputed, as clearly appeared from other evidence in the case. That witness testified that he claimed the land as his homestead. That it was alleged in his civil suit that the land belonged to him would hardly have been sufficient to constitute a contradiction of his testimony.
Whether defendants acquired knowledge from the newspaper item that the land in question was subject to homestead becomes immaterial, in view of the undisputed fact that actual notice was given by Laughlin, the homesteader, to Doyle, woods foreman of the corporation defendant. There was no error in the charge of the court that such notice would be notice to the corporation.
The criticisms of the other charges are without substance. It is, of course, true that it is an abuse of discretion for a trial court to refuse to consider a motion for new trial; but in this ease, although the District Judge stated that the motion would be considered as overruled, and proceeded to pass sentence before it was made, it appears, not only that a motion was subsequently made, but that it was actually considered. It is not contended that the evidence was insufficient to support the verdict, but only that the court erred in its rulings upon the admission and rejection of evidence, and its instructions to the jury. Under the circumstances,-we are of opinion that any error that resulted was harmless.
It clearly was not error to overrule the ground of the motion which relied upon newly discovered evidence obtained by an examination of public records, as defendants could have made that discovery before as well as after the trial by the exercise of due diligence.
Reversible error is not made to appear by any of the assignments, and the judgment is 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_appel1_1_2
|
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 "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".
Bernardo PENORO, Plaintiff, v. REDERI A/B DISA and VESSEL DISA, her motors, engines, boilers, gear and tackles, Defendants. REDERI A/B DISA, Defendant and Third-Party Plaintiff-Appellant, v. CUNARD STEAMSHIP COMPANY, Ltd., Third-Party Defendant-Appellee.
No. 345, Docket 30911.
United States Court of Appeals Second Circuit.
Argued Feb. 24, 1967.
Decided April 3, 1967.
William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens and Thomas F. Molanphy, New York City, on the brief), for defendant and third-party plaintiff-appellant.
John W. Castles, 3d, New York City (Lord, Day & Lord, William J. Brennan, and Roger C. Ravel, New York City, on the brief), for third-party defendant-appellee.
Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.
ANDERSON, Circuit Judge:
On October 14, 1963, Bernardo Penoro, a longshoreman employed by appellee, Cunard Steamship Company, Ltd., was seriously injured while unloading a ship owned by appellant, Rederi A/B Disa, in New York harbor. On May 15, 1964, Penoro commenced suit for $100,-000 against Rederi as shipowner. On June 23, 1965, Rederi, alleging that Penoro’s injuries had been caused by the fault of Cunard, moved to implead Cunard as a third party defendant on the ground that Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) entitled appellant to indemnity from appellee for any liability appellant might have to Penoro. In Ryan the Supreme Court held that a shipowner has a right of indemnity to recover from a stevedore the amount of judgment which the shipowner was required to pay to one of the stevedore’s employees for injuries incurred on its vessel but caused by the fault of the stevedore; the stevedore was said to have breached an “implied warranty of workmanlike service.”
On March 23, 1966, appellee stevedore moved in the trial court for a dismissal of the third party indemnity action or in the alternative for a stay from the prosecution of that action pending arbitration. 2The crux of appellee’s motion was the somewhat unusual circumstance that at the time of the injury of its employee Cunard was not only the stevedore but also the charterer of the ship. Under the time charter between Rederi and Cunard, entered into on April 10, 1963, Cunard, as the charterer, was responsible for arranging and paying for the loading and unloading of the vessel ; and Cunard had elected to do its own stevedoring in New York. The time charter also provided that any dispute between the shipowner and charterer, arising under the charter, would be referred to arbitration. The issue presented was whether or not Rederi’s Ryan indemnity action against Cunard, as stevedore, was subject to the arbitration agreement in which Cunard is described only as charterer.
In the court below appellant contended that its Ryan action was independent of the charter, and that the holding in that case provided it with a right to indemnity from Cunard as stevedore wholly apart from the charter and from Cunard’s status as charterer; that, in fact, as charterer Cunard was not subject to any duty of indemnity under the Ryan doctrine; and that consequently the Ryan action did not “arise under” the charter. Cunard, on the other hand, claimed that a stevedore’s implied warranty under Ryan must inhere in some contract made by the stevedore. It argues that here the stevedore had made no contract with the charterer, because they were in fact the same person, and the only contract the stevedore had made with the shipowner was the time charter, which it had made in its capacity of charterer. Cunard asserts that any Ryan implied warranty therefore must inhere in, i. e. “arise under,” the time charter and fall within the scope of the arbitration clause.
The trial court apparently adopted Cunard’s theory of the case and on July 5, 1966, decided the issue in its favor. Rederi’s action was not dismissed but was ordered stayed pending arbitration pursuant to the charter. Rederi now seeks review, under 28 U.S.C. § 1292(a) (1), of the interlocutory order granting the stay. Cunard moves to dismiss the appeal on the ground that § 1292(a) (1) does not apply. We grant the motion.
Section 1292(a) (1) provides: “(a) The courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court * *
Whether or not a stay of court proceedings is an “injunction” within the meaning of § 1292(a) (1) has depended on what proceedings are stayed by what court. The general principle is that where a court stays a proceeding on its own docket, that is not an injunction but merely a calendar order issued under the court’s inherent power to regulate the administration of its own business. On the other hand, where a court stays a proceeding in another court, that stay is considered to be an injunction. Traditionally, only a court of equity could stay proceedings in another court.
In Enelow v. New York Life Insurance Company, 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935), the Supreme Court first considered the problem of stays of court proceedings under Title 28 U.S.C. § 129, predecessor to § 1292(a) (1). There the trial court had granted defendant’s petition to try his equitable defense before trying plaintiff’s action at law. Although there was only one court involved, the Supreme Court treated the court as consisting of two separate “sides” and held that the equity side of the court had enjoined the law side. The order was therefore appealable. In Shanferoke Coal & Supply Corp. v. West-chester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935), decided the same day, defendant in a suit on a contract pleaded an exclusive arbitration clause in the contract; the court denied a stay of the contract action pending arbitration. The Supreme Court held that the issue of the arbitration clause raised an equitable defense and that the order denying the stay was appealable under Eneloio, which the Court interpreted as holding,
“[A]n order granting or denying a stay based on an equitable defense or cross-bill interposed in an action at law * * * is appealable under [present 1292(a) (1)] * * *.”
293 U.S. at 452, 55 S.Ct. at 314.
Enelow was decided shortly before the unification of law and equity under the Federal Rules of Civil Procedure, and it might have been thought that this unification would have spelled the end for Enelow’s “two sides” approach to § 1292 (a) (1). Indeed, that was the position of this court in Beaunit Mills, Inc. v. Eday Fabric Sales Corp., 124 F.2d 563 (2 Cir. 1942). The Supreme Court, however, reaffirmed Enelow, on virtually the same facts, in Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942). In two later cases, City of Morgantown v. Royal Insurance Co., Ltd., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949) and Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955), the Court was presented with a reverse situation from Enelow-Ettelson: the plaintiff’s action was one originally cognizable in equity rather than in law. In Morgantown the defendant interposed a counterclaim in law, and in Baltimore Contractors the defendant raised an equitable defense. As a court at law could not enjoin the equitable action, and as a court of equity would not enjoin itself, the orders below were both held non-ap-pealable. In both cases the equity side had merely exercised its inherent power to regulate proceedings before it; no injunction had been issued.
The result of the Supreme Court’s decisions is that an order granting or denying a stay of an action at law pending determination of an equitable defense or counterclaim is appealable. But if the original action is equitable or if the defense or counterclaim is legal, then the order is not appealable. Schine v. Schine, 367 F.2d 685 (2 Cir. 1967). Needless to say, this anomalous result, based on historical distinctions rather than on policies relevant to the desirability of allowing interlocutory appeals, has not escaped adverse criticism. See, e. g., 5 Moore, Federal Practice (2d ed. 1966) ¶ 39.13 [2]; 75 Harv.L.Rev. 351, 371-375 (1961). The Court itself has acknowledged the “incongruity” which “springs from the persistence of outmoded procedural differentiations” but has decided to wait for Congress to make an amendment if it should choose to do so. Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S. at 184-185, 75 S.Ct. 249.
Orders by courts in admiralty granting or denying stays of proceedings before them have been spared the confusion of Enelow-Ettelson-MorgantownBaltimore Contractors. Such orders have consistently been held not to be injunctions within the meaning of § 1292 (a) (1) even if based on equitable defenses or counterclaims. In Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1935), decided the same term as Enelow, a court in admiralty had stayed proceedings before it pending arbitration between the parties. Despite the similarity to the Shanferoke case, the Supreme Court held that admiralty courts had the power, without need to resort to the aid of equity, to delay actions before them pending the outcome of some other proceeding. Such an order was not one issued by equity and therefore not ap-pealable. This court has consistently followed the holding of Schoenamsgruber. Moran Towing & Transportation Co. v. United States, 290 F.2d 660 (2 Cir. 1961); Solomon v. Bruchhausen, 305 F. 2d 941 (2 Cir. 1962); Lowry & Co. v. SS LeMoyne D’Iberville, 2 Cir., 372 F.2d 123, January 21, 1967 [proceedings stayed pending foreign arbitration],
Rederi now contends that Schoenamsgruber, and our own decisions following it, are in some fashion undercut by the unification of civil and admiralty rules which became effective July I, 1966. Syllogistically summarized its argument is:
(1) The grant or denial of a stay of an action at law pending arbitration is appealable (Shanferoke).
(2) After unification actions in admiralty are to be treated no differently than actions in law.
(3) Therefore the grant or denial of a stay of an action in admiralty is appealable.
The difficulty lies in the second premise. The new rules make clear that actions in admiralty are not to be treated like actions in law in every respect (e. g., right to jury trial). Rule 9(h) provides :
“A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 26(a), 38(e), 73(h), 82 and the Supplemental Rules for Certain Admiralty and Maritime Claims.”
Although none of the rules referred to in Rule 9(h) deal directly with interlocutory appeals under § 1292(a) (1), the absence of such a reference does not mean the draftsmen intended to change § 1292(a) (1) in any way. The Ettel-son case teaches that the separate “sides” of the district court may survive unification for purposes of § 1292(a) (1). Since a court in admiralty had the power to stay its own proceedings without the aid of equity prior to unification, there is no reason to believe that it somehow lost that power as a result of unification.
Even if we were to bring stays in admiralty into the thicket of Enelow-Ettel-son-Morgantown-Baltimore Contractors, it would still be necessary to decide whether to apply Enelow-Ettelson (ap-pealability) or M organtown-Baltimore Contractors (non-appealability). There is no need to disturb existing practice by applying Enelow-Ettelson. While neither of those decisions turned expressly on the right to trial by jury, both opinions mentioned that right, and it is likely that the Supreme Court was concerned in those decisions that there be a right to immediate appeal from a ruling, the effect of which might be to keep plaintiff from a jury in the event that the equitable defense or counterclaim should be decided against him. 75 Harv.L.Rev. 351, 373-374 (1961). Since there is no right to jury trial in admiralty, this concern for access to the jury is inapplicable.
Stays of the kind with which this case is concerned are merely calendar orders. They do no more than delay proceedings; in the great majority of cases they do not, in practical effect, determine substantial rights of the parties or cause irreparable harm. They demonstrate no crying need for an exception to the final judgment rule. See Moore, Federal Practice (2d ed. 1966) II 39.13 [1]. In the instant case, Rederi, the appellant, may receive satisfaction for its idemnity claim in the arbitration proceeding. If it does not, or if it receives only partial satisfaction, then it will be free to renew its Ryan indemnity claim in the district court. If, as the appellant argues, the Ryan claim against appellee, Cunard, as stevedore is independent of the time charter, then no decision or award by the arbitrator will have any effect on that claim (except to the extent that a partial award by the arbitrator would reduce the amount of indemnity to which appellant is entitled).
The appeal is dismissed.
. Authority for district courts to stay proceedings pending arbitration is provided in 9 U.S.C. § 3.
. Clause 4 of the Charter provides:
“Whilst on hire the Charterers to * * arrange and pay for loading, trimming, stowing * * *, unloading, weighing, tallying and delivery of cargoes. * * ”
. Clause 23 of the Charter provides:
“Any dispute arising under the Charter to be referred to arbitration in London one arbitrator to be nominated by the Owners and the other by the Charterers, and in the case the Arbitrators shall not agree then to the decision of an Umpire to be appointed by them, the award of the Arbitrators or Umpire to be final and binding upon both parties.”
. McNamara v. Weichsel Dampfschifffahrts A. G. Kiel Germany, 339 F.2d 475, 478 (2 cir. 1964) ; D/S Ove Skou v. Hebert, 365 F.2d 341, 351 (5 Cir. 1966).
. In Ryan the stevedore had a contract with the shipowner; however, the Court was quick to apply Ryan where the stevedore’s contract was with someone other than the shipowner. In Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959), the stevedore had contracted with the charterer. The Court held that the stevedore’s implied warranty of workmanlike service was for the benefit of the ship; therefore, the shipowner could recover indemnity from the stevedore as third party beneficiary. See also Waterman SS Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960) [stevedore contract with cargo consignee].
. While Cunard argued here and below that its Ryan obligations arise under the charter, there is some indication in its brief that, before the arbitrators in London, it will speak another language and argue that Ryan as American law has no application to a time charter entered in England.
. While there is no doubt that the basis of Ryan is contract rather than tort, Italia Societa v. Oregon Stevedoring Co., Inc., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964), the trial court’s concept of “contract” for Ryan purposes — that there could be no contract other than the time charter — is an extremely narrow one and is apparently in conflict with what we said in DeGioia v. United States Lines Co., 304 F.2d 421, 425 (2 Cir. 1962) :
“The primary source of the shipowner’s right to indemnity, as a practical matter, is his nondelegable duty to provide a seaworthy ship, by virtue of which ho may be held vicariously liable for injuries caused by hazards which the longshoremen either created or had the primary responsibility or opportunity to eliminate or avoid. * * * The function of the doctrine of unseaworthiness and the corollary doctrine of indemnification is allocation of the losses caused by sjiipboard injuries to the enterprise, and within the several segments of the enterprise, to the institution or institutions most able to minimize the particular risk involved. * * * Thus while the cases speak in the language of contract, it is misleading to cling to the literal implications of that language. The scope of the stevedore’s warranty of workmanlike performance is to be measured by the relationship which brings it into being. Since the shipowner here was held liable for injuries the jury found were the foreseeable result of the stevedores’ failure to perform in a workmanlike fashion, it may recover indemnification, whether it was strictly a ‘third-party beneficiary’ or not. * * ”
at 425-426. See also Williams v. Pennsylvania R. R., 313 F.2d 203, 212 (2 Cir. 1963); Rogers v. United States Lines Co., 303 F.2d 295 (3 Cir. 1962). The cases cited by the court below, Giuffre v. The Magdalene Vinnen, 152 F.Supp. 123 (E.D. N.Y.1957) ; Green Steel & Wire Co. v. F. W. Hartmann & Co., 235 N.Y.S.2d 238 (Sup.Ct.1962), aff’d, 20 A.D.2d 683, 247 N.Y.S.2d 1008, leave to appeal denied, 249 N.Y.S.2d 886 (Ct.App.1964), are not directly applicable since they did not involve claims based on the Ryan implied warranty doctrine.
. Appellant earlier sought a discretionary interlocutory appeal under 28 U.S.C. § 1292(b). Leave to appeal under § 1292 (b) was denied by this court on September 7, 1966.
. As an historical matter, there seems to be no reason why the chancellor would not have enjoined proceedings before courts of admiralty as well as before courts of law. See 75 Harv.L.Rev. 351 (1961).
. 383 U.S. 1031 (Feb. 28, 1966). We assume without deciding that the new rules apply to this appeal from an order of July 12, 1966 even though the proceedings began some two years earlier.
. With“respect to § 1292(a) (3), under which most interlocutory appeals are taken, the draftsmen specified that the new rules wore not to affect former practice. Rule 73(h) provides:
“These rules do not affect the appeal-ability of interlocutory judgments in admiralty cases pursuant to Title 28, U.S.C., § 1292(a) (3). The reference in that statute to admiralty cases shall be construed to mean admiralty and maritime claims within the moaning of Rule 9(h).”
§ 1292(a) (3) provides for appealability of:
“Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty eases in which appeals from final decrees are allowed.”
There are intimations in Schoenumsgruber, 294 U.S. at 458, 55 S.Ct. 475, 79 L.Ed. 989 that § 1292(a) (3) might be the exclusive route to interlocutory appeals in admiralty cases, and the Fifth Circuit seems to have adopted that position. Stark v. Texas Co., 88 F.2d 182 (5 Cir. 1937). However, this court has held appealable under § 1292(a) (1) orders in admiralty which did not qualify under § 1292(a) (3). W. E. Hedger Transportation Corp. v. Gallotta, 145 F.2d 870, 871 (2 Cir. 1944); Curtis Bay Towing Co. v. Tug Keven Moran, Inc., 159 F.2d 273, 275 (2 Cir. 1947) and these decisions have met with favorable comment. 6 Moore, Federal Practico, ¶54.06 [5] at p. 41. See also In re World Trade-ways Shipping, Ltd., 373 F.2d 860 (2 Cir. March 15, 1967).
. Clause 13 of the time charter provides:
“ * * * The Charterers to be responsible for loss or damage caused to the Vessel or to the Owners by goods being loaded contrary to the terms of the Charter by improper or careless bunker-ing or loading, stowing, or discharging of goods or any improper or negligent act on their part or that of their servants.”
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_treat
|
C
|
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.
HENRY v. HODGES.
No. 56, Docket 21086.
United States Court of Appeals Second Circuit.
Nov. 29, 1948.
Frederick Bernays Wiener, of Washington, D. C., John F. X. McGohey, U. S. Atty., of New York City, T. Vincent Quinn, Asst. Atty. Gen., Thayer Chapman, Major, Judge Advocate General’s Department, U. S. Army, of Washington, D. C., and Bertram Schwartz, Judge Advocate’s Office, Headquarters First Army, of New York City (John F. Ryan, Asst. U. S. Atty., of New York City, of counsel), for appellant.
. Emil Morosini, Jr., of New York City, Robert N. Gorman, of Cincinnati, Ohio, and Henry C. Ruttiger, of Newark, N. J., for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
L. HAND, Chief Judge.
The respondent, who has custody of Henry, the relator, under a judgment of conviction of a general court martial, appeals from an order, releasing Henry upon habeas corpus. Only two questions are at issue: (1) Whether Henry was deprived of that “thorough and impartial investigation,” preliminary to convening a “general court martial,” which the Seventieth Article of War, affords; and (2) whether the “general court martial” before which he was tried was improperly constituted under the Eighth Article of War, because the “law member” was not “an officer of the Judge Advocate General’s Department.” The district judge held with the relator on the first point, and with the respondent on the second-; he has stated the underlying facts in an opinion, and we need not repeat them here, but will proceed at once to discuss the issues they raise.
We shall not decide whether the “thorough and impartial investigation,” prescribed by the Seventieth Article of War, is a condition upon the jurisdiction of a “general court martial” such that its absence is a defect of jurisdiction, which exposes a subsequent conviction by the court to attack by habeas corpus. A majority of the Third Circuit has recently so held, and we shall assume arguendo that they were right. What we do decide is that, when the accused has had the substance of that protection which the statute intended him to have, formal defects do not touch the jurisdiction of the court.
Before the charges were filed, Captain Meyers made an extended investigation of the occurrences in question. He examined a number of statements of witnesses taken by Captain Stavor; some of these witnesses he himself examined; some additional witnesses he examined on his own account; and he interviewed Henry personally at length. All this material he put together in a preliminary report, which, had he made it up after the charges were preferred, would have answered all the requirements of the Seventieth Article, as a “thorough and impartial investigation.” However, he did not prepare it to be such an investigation, and his findings were tentative; it was only after the charges had been verified and filed, that he made that final report whose sufficiency is now challenged. The first question is whether he was disqualified in this because of his preliminary report with its tentative conclusions.
There is no inherent reason to deny power to a judicial officer to review his own judgments, even though they be final and decide the very merits of the cause; at common law this was permissible. True, it has long been the custom to forbid it by statute and there are good grounds for so doing; but it still persists in the practice of bringing on a motion for a new trial for errors of law before the judge who made the original decision. Rightly or wrongly, judges are credited pro tanto with enough detachment to be able to reexamine impartially what they have done; at least when, as here, the final disposition will in the end be determined by others. There is not a syllable to support the conclusion that in this case Captain Meyers was unwilling to reconsider the conclusions to which he had come before; and we can see no reason to suppose that in result the “post-charges” report did not comply with the statute. Indeed, so far as Henry has any complaint whatever, it is not to that there never was that “thorough and impartial investigation” which must precede the convening of a general court martial, but that there had been no separate “investigation” preliminary to the preferring of charges against him. The Seventieth Article provides that the charges “must be signed by a person * * * under oath either that he has personal knowledge of, or has investigated, the matters set forth therein, and that the same are true in fact, to the best of his knowledge and belief.” Another officer than Meyers verified the charges in question, and, although he probably did so with Meyers’ “pre-charges” report before him, there is no reason to assume that the “investigation” which he was charged with making, may not have been of the exhibits which were attached to Meyers’ report rather than upon the bare report. We should have no warrant for assuming the contrary, or for holding that the charges were not regular.
Moreover, the issue is not in the case anyway, for Henry assented to the “post-charges” investigation without reserve. After Meyers had filed his preliminary report, after the charges had themselves been filed, and after he had been ordered to make the “post-charges” investigation, he showed his preliminary report to Henry, containing as it did the twelve exhibits which fill eighty-four typed pages and which contained everything he had acted upon, and meant to act upon again (the testimony, the statements and the documents). He asked Henry whether he wished “to cross-examine any witness,” and Henry said he did not; he named nine witnesses specifically whom he suggested that he might call, and he asked Henry whether he wished to cross-examine any of these, and Henry said he did not; finally, he asked Henry whether he wished to make any further statement of his own, and Henry said that he did not. It was only after this that he made the report on which the general court martial was convened. That was dated October 29th; and two days later he made a second report, more in detail, showing that he had gone over the ground again and repeating that Henry did not wish to make any “statement,” although he had said that he meant to call four witnesses in his defense at the trial. Henry did not deny that he had been shown the preliminary report with its accompanying exhibits, or that he had not wished to cross-examine the witnesses, or that he had not refused to make any added statement on his own behalf. He did swear that he had asked Meyers to call four witnesses at the hearing under the Seventieth Article, and that Meyers refused; but Meyers denied this, and the court found against Henry. That finding concededly we should not reverse.
It is on such a showing that we are asked to hold that the substance of the protection which the Seventieth Article provides was so far denied Henry that the court martial had no jurisdiction to proceed. Chief Judge Biggs in Hicks v. Hiatt, held that, where the cumulation of incidents in a trial persuasively shows that the accused has been denied a fair trial, the conviction should be reversed, as wanting “due process of law.” We do not mean to. suggest that this is not a ground for declaring that the court did not have jurisdiction of the case; but here there was no shadow of oppression or of denial of “due process of law”; there was nothing which by any possibility could have prejudiced Henry in his defense. Unless we are to treat every procedural defect, however trivial, as impairing the jurisdiction of the court, this is no case to intervene.
There remains the second question: The irregularity in the constitution of the court: i. e., whether any member of the Judge Advocate General’s Department was “available” at the time. We cannot say that it was not more in the interest of justice to detail Beatty to defend Feltman than to put him on the court; or that it was not better judgment to make Swan a prosecutor than a judge: and these were the only officers of the Department whom Henry claims to have been “available.” The whole question is especially one of discretion; and, if it is ever reviewable, certainly the record at bar is without evidence which would justify a review. The commanding officer who convenes the court must decide what membership will be least to the “injury of the service,” and what officers are “available.” “Available” means more than presently “accessible”; it demands a balance between the conflicting demands upon the service, and it must be determined on the spot.
Order reversed; writ dismissed.
§ 1542, Title 10 U.S.C.A.
§ 1479, Title 10 U.S.C.A.
D.C., 76 F.Supp. 968.
Smith v. Hiatt, 170 F.2d 61.
Fink v. Tod, 2 Cir., 1 F.2d 246, 249, 250; Pierce v. Delamater, 1 N.Y. 17; Oakley v. Aspinwall, 3 N.Y. 547, 553 (semble); In re Carter’s Will, 193 App.Div. 356, 358, 184 N.Y.S. 40; In re Mavroidi’s Estate, Sur., 60 N.Y.S.2d 344; Forde v. Commonwealth, 16 Grat., Va., 547, 551, 552; Burguieres v. Farrell, Tex.Civ.App., 85 S.W.2d 952, 956; Galveston & H. Inv. Co. v. Grymes, 94 Tex. 609, 64 S.W. 778; Graham v. Selbie, 8 S.D. 604, 67 N.W. 831; Edwards v. His Wife, 9 La.Ann.321.
D.C., 64 P.Supp. 238, 240.
Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; Mullan v. United States, 149 U.S. 240, 11 S.Ct. 788, 35 L.Ed. 489; Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823; Bishop v. United States, 197 U.S. 334, 25 S.Ct. 449, 49 L.Ed. 780; Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469.
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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America for the Use and Benefit of FLOATING FLOORS, INC., a corporation, Appellant, v. FEDERAL INSURANCE COMPANY, a corporation, Appellee.
No. 21253.
United States Court of Appeals Ninth Circuit.
July 19, 1967.
Rehearing Denied Sept. 12, 1967.
Michael M. Weekes, Dillavou & Cox, Los Angeles, Cal., for appellant.
David Leanse, Simon & Leanse, Los Angeles, Cal., for appellee.
Before BROWNING and ELY, Circuit Judges, and SMITH, District Judge.
Russell E. Smith, United States District Judge, District of Montana, sitting by designation.
RUSSELL E. SMITH, District Judge:
This case involves a notice problem under the Miller Act. The notice given in this case was not timely unless the time was extended by the furnishing of some replacement panels. We hold that the time was not extended, that there was not any material issue of fact, and we affirm the action of the trial court in granting a motion for summary judgment.
The United States contracted with Murray J. Schiff Construction Co. (Schiff) to do a job involving the use of floor panels. Schiff sublet to L. D. Reeder Co. (Reeder) which purchased the panels from Floating Floors, Inc. (use plaintiff), which, in turn, purchased them from Commercial Steel Company (Commercial), the manufacturer. Defendant furnished the Miller Act bond for Schiff. Reeder did not pay use plaintiff for the panels which were used in the job and it now seeks judgment against the defendant.
After the Miller Act notice time had expired, the United States notified Schiff that some of the panels had failed. Schiff called the use plaintiff and advised it of the failure. There is some conflict as to the substance of the conversation but this much is clear: Use plaintiff did not deliver the replacement panels to Schiff; it did not pay for them; it did not promise that it would deliver them. It did call Commercial, the manufacturer, and did furnish Commercial with a detailed list of the panels which had failed. Commercial did manufacture the panels and at Schiff’s request did ship them to Schiff C.O.D. Schiff paid Commercial for the panels.
There is a suggestion in the evidence that perhaps the panels were manufactured by Commercial at use plaintiff’s request and held for the use plaintiff’s account. We treat the case as if this were so, thus giving use plaintiff the benefit of every inference which the record would possibly support.
At the time of the conversations between Schiff and use plaintiff and use plaintiff and Commercial, the Miller Act notice time had expired and neither Schiff nor the defendant were in any way obligated to the use plaintiff. Schiff, having had no contractual relationships with use plaintiff, was obligated to use plaintiff neither to remedy defects in the panels nor to seek it out to complete the contract if the panels as installed rendered the performance of the contract incomplete.
The plaintiff’s act of having panels manufactured for its account standing alone and in the absence of any act of delivering the panels to the job site, paying for them, or assuming some responsibility to Schiff to deliver or pay for them does not constitute a furnishing or supplying and the notice time was not extended.
The judgment is affirmed.
. 40 U.S.C. § 270b(a).
. “Mr. Beere, [an ofifeer of use plaintiff] stated that he would have to get more information about the status of the project in order to determine just how we could handle the problem and therefore to hold the new panels until we at Commercial Steel heard from him at Floating Floors. We thereupon proceeded to manufacture the panels according to a list of them which Mr. Beere dictated to me over the telephone.” (The foregoing is from the affidavit of Robert S. Jendrek, Vice President of Commercial.)
. United States for Use of Weithman v. Buckeye Union Casualty Company, N.D. Ohio 1962, 207 F.Supp. 552. If it were otherwise, a use plaintiff by leaving a few defects behind him might extend the Miller Act notice time indefinitely.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_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.
STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SMITH
No. 01-339.
Decided December 12, 2001
Per Curiam.
Respondent Robert Douglas Smith was convicted in 1982 of first-degree murder, kidnaping, and sexual assault. He was sentenced to death on the murder count, and consecutive 21-year prison terms for the other counts. After a series of unsuccessful petitions for state postconviction relief, respondent filed a federal petition for a writ of habeas corpus under 28 U. S. C. §2254 (1994 ed. and Supp. V) in the United States District Court for the District of Arizona. The petition alleged that his trial and appellate counsel were ineffective for failing to challenge various trial errors. Respondent had previously brought these ineffective-assistance claims in 1995 in a petition for state postconviction relief pursuant to Arizona Rule of Criminal Procedure 32 (West 2000). The Pima County Superior Court denied his claims, finding them waived under Arizona Rule 32.2(a)(3) because respondent failed to raise them in his previous two Rule 32 petitions. In doing so, it rejected as “outrageous” respondent’s argument that his failure to raise these claims was also due to ineffective assistance — in particular, that his prior appellate and Rule 32 counsel, who are members of the Arizona Public Defender’s office, refused to file ineffeetive-assistance-of-counsel claims because his trial counsel was also a member of the Public Defender’s office. App. D to Pet. for Cert. 1.
On federal habeas, the United States District Court held respondent’s claims barred by the Pima County Superior Court’s procedural ruling. The court rejected respondent’s allegations that a conflict between his appellate and Rule 32 counsel’s responsibility toward respondent and their allegiance to the Public Defender’s office was cause for his procedural default in state court. The Court of Appeals for the Ninth Circuit reversed, holding that the state procedural default was not independent of federal law and thus did not bar federal review of the merits of respondent’s claim, 241 F. 3d 1191,1196 (2001) (citing Ake v. Oklahoma, 470 U. S. 68, 75 (1985)). It reasoned that Arizona Rule 32.2(a)(3) applies a different standard for waiver depending on whether the claim asserted in a Rule 32 petition was of “sufficient constitutional magnitude,” Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), and that determination whether a claim is of sufficient magnitude required, at the time the Superior Court ruled on respondent’s ineffective-assistance claims, consideration of the merits of the claim, 241 F. 3d, at 1197 (citing State v. French, 198 Ariz. 119, 121-122, 7 P. 3d 128, 130-131 (App. 2000); State v. Curtis, 185 Ariz. 112, 115, 912 P. 2d 1341, 1344 (App. 1995)).
We hereby grant certiorari to review the Ninth Circuit Court of Appeals’ determination that the Pima County Superior Court’s procedural ruling was not independent of the merits of respondent’s claims of ineffective assistance of trial and appellate counsel under the Sixth Amendment. In order to determine whether the District Court may review these claims, we first must know whether the Court of Appeals properly interpreted Arizona law concerning Rule 32.2(a)(3). Therefore, we certify the following question to the Arizona Supreme Court pursuant to that court’s rule concerning Certification of Questions of Law from Federal and Tribal Courts (Ariz. Sup. Ct. Rule 27 (West 2000)):
At the time of respondent’s third Rule 32 petition in 1995, did the question whether an asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), depend upon the merits of the particular claim, see State v. French, 198 Ariz. 119, 121-122, 7 P. 3d 128, 130-131 (App. 2000); State v. Curtis, 185 Ariz. App. 112, 115, 912 P. 2d 1341, 1344 (1995), or merely upon the particular right alleged to have been violated, see State v. Espinosa, 200 Ariz. 503, 505, 29 P. 3d 278, 280 (App. 2001)?
We respectfully request that the Arizona Supreme Court accept our certification petition. That court’s answer to this question will help determine the proper state-law predicate for our determination of the federal constitutional questions raised in this ease.
The Clerk of this Court is directed to transmit to the Supreme Court of Arizona an original and six certified copies of this opinion, the briefs and records filed in this Court in this case, and a list of the counsel appearing in this matter along with their addresses and telephone numbers, pursuant to Ariz. Sup. Ct. Rules 27(a)(3)(c) and (a)(4) (West 2000). Judgment and further proceedings in this case are reserved pending our receipt of a response from the Supreme Court of Arizona.
It is so ordered.
We also grant respondent’s motion for leave to proceed informa pau-peris and the motion of the Criminal Justice Legal Foundation for leave to file a brief as amicus curiae.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_casetyp1_7-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
In the Matter of Karl L. GRETZ, and Gabrielle W. Gretz, His Wife, Individually and Jointly, Bankrupts. P & C Realty Co., Formerly Known as Esslinger’s Inc., Appellants.
No. 15756.
United States Court of Appeals Third Circuit.
Argued May 25, 1966.
Decided June 8, 1966.
Abraham L. Shapiro, Philadelphia, Pa. (Norman C. Henss, Cohen, Shapiro, Berger & Cohen, Philadelphia, Pa., on the brief), for appellants.
Lester J. Schaffer, Philadelphia, Pa. (Herman N. Silver, Philadelphia, Pa., on the brief), for appellees.
Before KALODNER and HASTIE, Circuit Judges, and WRIGHT, District Judge.
PER CURIAM:
In a bankruptcy proceeding the appellant has sought to make what is in essence a collateral attack upon a money judgment which the bankrupt recovered against it in a state court. The appellant’s contention is that the state judgment resulted from perjured testimony. However, this issue was raised in the state trial court before judgment and again urged on appeal in the Pennsylvania Supreme Court. The state courts were not persuaded to withhold or vacate judgment. We agree with the district court that the same grounds which were urged unsuccessfully in the state court cannot be the basis of relief from the consequences of that judgment in the bankruptcy court.
The Order of the district court will be affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_appel1_7_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 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").
T. O. BRADBURY and N. B. Burt, Appellants, v. Frank DENNIS, Appellee.
No. 6978.
United States Court of Appeals Tenth Circuit.
Oct. 15, 1962.
Fred M. Winner, Denver, Colo. (Emory L. O’Connell and Robert J. Enochs, Denver Colo., were with him on brief), for appellants.
Clyde J. Watts, Oklahoma City, Old. (Yegge, Hall & Schulenberg, Denver, Colo., was with him on brief), for appel-lee.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
MURRAH, Chief Judge.
This interlocutory appeal under Section 1292(b) Title 28 U.S.C., squarely presents the question of the trial court’s diversity jurisdiction. It is contended that the assignment of the asserted cause of action by a wholly owned resident corporation to its nonresident stockholder-plaintiff was “improperly or collusively” made to invoke federal court jurisdiction within the meaning of Section 1359, 28 U.S.C., which denies diversity jurisdiction in such cases. The trial court sustained its diversity jurisdiction, but certified the question here as one as to which “there is substantial grounds for difference of opinion.”
The complaint affirmatively asserts diversity of citizenship and requisite amount in controversy, and alleges in substance that by the challenged assignment of the asserted cause of action, the plaintiff-appellee merely acquired that which he already owned since he alone had provided the funds for payment of the usurious interest, which is the subject matter of this lawsuit.
If, as suggested, the appellee was the actual owner of the cause of action before the purported assignment, he was of course the real party in interest, and we have no occasion to consider the propriety of the assignment. Pursuant to a hearing to determine jurisdiction, the trial court found, and the record indicates, that the plaintiff and others entered into a partnership for the development of certain real estate in Colorado, the appellee advancing all of the partnership capital. The partnership entered into a contract with the appellants which provided for the payments now claimed to include usurious interest. The partnership organized a Colorado corporation and assigned all of the partnership assets to it, and the corporation assumed all of the partnership liabilities, including an indebtedness to the appellee for capital advancements to the partnership. Some of the payments made under the alleged usurious contract were made by the partnership and some by the corporation. After the appellee became the sole stockholder of the corporation, he caused it to execute the assignment in question, purporting to assign to him all claims and demands which the corporation had or might have against the appellants. At the time of the assignment, the corporation was insolvent, but the plaintiff had paid or orally promised to pay a substantial part of the corporation’s indebtedness. It is thus plain that the appellee was not the sole owner of the asserted cause of action before the challenged assignment, and was not therefore the real party in interest.
This brings us to the question whether the assignment was “improperly or collusively” made within the meaning of Section 1359. We start with the presumption against diversity jurisdiction, and the burden is and always has been upon the one asserting it to affirmatively sustain it; and the court is under the duty to dismiss the action if at any stage of the proceeding it becomes apparent that j urisdietion is lacking. City of Lawton, Oklahoma v. Chapman, 10 Cir., 257 F.2d 601.
Originally, one section of the Judicial Code (§ 24(1), 36 Stat. 1091) specifically denied federal jurisdiction to an assignee of a cause of action if it was not available to his assignor. Sowell v. Federal Reserve Bank of Dallas, Tex., 268 U.S. 449, 45 S.Ct. 528, 69 L.Ed. 1041. Another section of the same Code (§ 37, 36 Stat. 1098) denied federal jurisdiction if, at any time after suit had been brought or removed to the federal court, it appeared that the parties to the suit had been “improperly or collusively made or joined * * * for the purpose of creating a case cognizable or removable * * * ” to the federal court. The revisors of the 1948 Judicial Code conjoined the two sections to form Section 1359, under which diversity jurisdiction by assignment became eonferrable provided it was not improperly or collusively made for that purpose. See Revisors’ Note to 28 U.S.C. § 1359; and Steinberg v. Toro, D.C., 95 F.Supp. 791. Indeed, the appellants freely concede as much.
The critical words “improperly or col-lusively,” having been imported from old Section 37 into the Revised Section 1359, we will assume that Congress intended for them to have the same meaning and connotation which had been given them at the time of incorporation into the Revised Code. Our difficult problem is one of ascertaining their true jurisdictional meaning at the time of the revision. As words used to delineate jurisdiction, they ought to be cast in black and white, but we find them in the decisional gray zone. Though words of general import, and no strangers to the law, they are nevertheless words of art when used to define or delineate federal court jurisdiction. They are used in the disjunctive and are evidently intended to define different and varying jurisdictional boundaries; Pre-revision case law did not draw a distinction between the two, but was content to say that an assignment or transfer was not improper or collusive unless it could be said to be “fictitious or pretended,” Miller & Lux, Inc. v. East Side Canal & Irrigation Co., 211 U.S. 293, 29 S.Ct. 111, 53 L.Ed. 189; or “feigned or merely col-orable,” Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681; or for the purpose of creating a temporary or spurious citizenship, Amalgamated Clothing Workers v. Curlee Clothing Co., 8 Cir., 19 F.2d 439; Tower Realty Co. v. City of East Detroit, Mich., 6 Cir., 185 F.2d 590. It was enough that the assignee or transferee was the real party in interest. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., supra. If we accept the dictionary definition, as did the Third Circuit, (i.e. Corabi v. Auto Racing, Inc., 3 Cir., 264 F.2d 784, 75 A.L. R.2d 711) the word “improperly” broadly covers any act or conduct deemed unsuited to the circumstances of the case, while the word “collusively” is a stronger word with a more restricted meaning indicating a secret agreement for a bad purpose.
Particularly, we need to know by what standards we shall determine when an assignment or transfer is “fictitious,” “colorable” or “spurious,” hence imprdper or collusive. The trial court sustained its jurisdiction on the legal premise that the insolvency at the time of the assignment, or the failure of the corporate minutes to reflect authorization for the assignment, or that the assignment might be voidable upon collateral attack by the creditors, did not render the assignment either improper or collusive or prevent the plaintiff from maintaining the action thereunder. In short, the trial court confined its inquiry to the validity of the transfer as between the parties, that is, between the corporation and its sole stockholder, and finding adequate consideration, went no further. The appellant takes the position that the assignment is improperly or collusively made if it is subject to attack by anyone, and contends that the assignment amounted to a partial liquidation by an insolvent corporation which is prohibited by Colorado statute. See C.R.S.1953 Supp. 31-31-11. He says this position is supported by Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444; and Miller & Lux, Inc. v. East Side Canal & Irrigation Co., supra.
In Lehigh Mining, stockholders of a Virginia corporation organized a Pennsylvania corporation and transferred real property located in Virginia to the Pennsylvania corporation for the purpose of conferring diversity jurisdiction upon the federal court in Virginia to entertain an asserted cause of action. The court sustained a denial of diversity jurisdiction, saying “The arrangement by which, without any valuable consideration, the stockholders of the Virginia corporation organized a Pennsylvania corporation and conveyed these lands to the new corporation for the express purpose — and no other purpose is stated or suggested — of creating a case for the Fedei’al court, must be regarded as a mere device to give jurisdiction to a Circuit Court of the United States and as being, in law, a fraud upon that court, as well as a wrong to the defendants. Such a device cannot receive our sanction.” (p. 339,16 S.Ct. p. 312)
More than a decade later, the stockholders of a California corporation in Miller & Lux organized a Nevada corporation and transferred all of the assets of the California corporation to it. The California corporation became the owners of all of the stock of the Nevada corporation, with full power of control in the California stockholders. A suit instituted by the California corporation in the California state court was dismissed and refiled in the federal court by the Nevada corporation, based upon diversity jurisdiction. The writer of the Lehigh case, also writing for the court in Miller & Lux, reemphasized the right and power of the resident stockholders in either case to require the foreign corporation to reconvey the property to the resident corporation at their convenience; and that in each case, the transfer of the property was a mere sham or device to invoke federal jurisdiction.
The appellees rely on the much later case of B & W Taxi, and say that while it did not expressly overrule Lehigh, it is conceptually different. In that case, the stockholders of a Kentucky corporation organized a Tennessee corporation to which it transferred all of its assets. The Kentucky corporation was dissolved. The Tennessee corporation made new contracts similar to those held by the Kentucky corporation, and in all respects succeeded to that company’s business. Suit was brought on the new contracts based on diversity of citizenship. Diversity jurisdiction was sustained, the court saying, “The succession and transfer were actual, not feigned or merely colorable. In these circumstances, courts will not inquire into motives when deciding concerning their jurisdiction.” The court thought the distinction between that case and Lehigh and Miller & Lux was too clear for discussion, and we agree. The obvious distinction lies in the fact that in Lehigh and Miller & Lux, the resident corporation remained in existence, and in full control of the foreign corporation, while in the Taxi case, the resident corporation was dissolved.
The appellees also seem to rely on Corabi v. Auto Racing, Inc., 3 Cir., 264 F.2d 784, 75 A.L.R.2d 711 a post-revision case involving diversity jurisdiction based upon the appointment of a foreign administrator. The foreign administrator was appointed for the avowed purpose of invoking federal jurisdiction. The court thought the facts of that case fell outside the ruling of Lehigh and within the ambit of the Taxi case. While the reasoning is not entirely clear, it is significant, we think, that under applicable state law, a foreign administrator had standing to maintain the suit, and the decree of the probate court appointing the administrator was not subject to collateral attack. And see Mecom v. Fitzsimmons Drilling Co., 10 Cir., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904. But compare Martineau v. City of St. Paul, 8 Cir., 172 F.2d 777, where the court, looking at state law, concluded that an administrator was without standing to maintain the suit in the state court, and -therefore could not maintain it in the federal court based on diversity of citizenship.
As we view the cases, none of them control in our situation. Our transaction is not merely colorable or a sham as in Lehigh and Miller & Lux. The assignment is supported by adequate consideration, and while it is infected with the self dealings of a sole stockholder with his insolvent corporation, there was nothing surreptitious or fictitious about the transaction. While it may lack the sanctions of state law which underlie the Taxi and Corabi cases, at the same time no one can say that it operates to the prejudice of any third party, including the creditors of the corporation, for whose protection state law is invoked. Indeed, if our inquiry should go so far, we may very well conclude that the assignment was for the benefit of all interested parties, except perhaps the appellants.
Certainly diversity jurisdiction should not be made to depend on whether some one can pick a legal flaw in the transaction by which jurisdiction is conferred. It should not be made to depend upon or await adjudication of the legality of the transaction under state law. All this means that the state of the law is left in the gray zone where we found it. Certainly no rule of thumb is suggested or stated. But, after all, it is the words of a federal statute we construe in the context of an historical purpose to deny diversity jurisdiction when it would operate to serve a purpose which is unsuited to the good order of federal court administration. Viewed in this context, we cannot say that the assignment was either improper or collusive, or that the suit is not being prosecuted in the name of the real party in interest. The judgment is affirmed.
. § 1359. “A district court shall not have • jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.”
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:
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songer_appel1_1_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private 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".
JOHNSTON BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 10532.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 13, 1950.
Decided Dec. 7, 1950.
Messrs. Franklin K. Lane and Orville H. Walburn, Washington, D. C., for appellant.
Mr. Richard A. Solomon, Attorney, Federal Communications Commission, Washington, D. C., with whom Mr. Max Goldman, Acting General Counsel, Federal Communications Commission, Washington, D. C., was on the brief, for appellee.
Messrs. Benedict P. Cottone, General Counsel, Federal Communications Commission, and Dee Pincock, Attorney, Federal Communications Commission, Washington, D. C., also entered appearances on behalf of appellee.
Mr. John Erie Stephen, Houston, Tex., with whom Mr. John P. Southmayd, Washington, D. C., was on the brief, for inter-venors Thomas N. Beach and Pilot Broadcasting Corp.
Before CLARK, PRETTYMAN, and FAHY, Circuit Judges.
FAHY, Circuit Judge.
The appellant Johnston Broadcasting Company seeks review under § 402(b) of the Communications Act of 1934, as amended (47 U.S.C.A. § 402(b)) of an order of the Federal Communications Commission (1) denying its petition for final grant of a construction permit, and (2) setting for competitive hearing its application for the permit along with the application of Pilot Broadcasting Corporation should the latter file an amendment showing that it is now the applicant for the permit which previously had been applied for in the name of another. The order described the applications as mutually exclusive. The denial of the petition for final grant was not a refusal of the permit itself but only of the petition for its grant without the hearing ordered by the Commission. Thus the question of grant or refusal of the permit is still pending and undetermined. Our jurisdiction on appeal from the Commission is confined by § 402(b), supra, to appeals:
“(1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission.
“(2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.
“(3) By any radio operator whose license has been suspended by the Commission.”
The order comes within none of these categories. The appeal must accordingly be dismissed for lack of jurisdiction. Pauley, et al. v. Federal Communications Commission, 1950, 86 U.S.App.D.C. 294, 181 F.2d 292. We are not deterred from dismissing now by reason of our previous denial of the Commission’s motion to dismiss and our stay of further proceedings pending determination of the appeal. This could not have the effect of giving us jurisdiction.
Appellant urges with great earnestness that the Commission has erred in keeping alive the application of Pilot by permitting successive amendments of an application originally filed by Thomas N. Beach. Some aspects of this problem were considered by this Court in Johnston Broadcasting Co. v. F. C. C., 1949, 85 U.S.App.D.C. 40, 175 F.2d 351. There we reversed a decision of the Commission granting Beach’s application, as then presented, for a construction permit to change the facilities involved (Station WTNB, Birmingham, Alabama) and denying the mutually exclusive application of Johnston Broadcasting Company for a new station in Birmingham to operate on the same facilities sought by Beach. The basis of our disagreement with the Commission was that the Beach application was not signed and verified as required by § 308(b) and § 319(a) of the Communications Act. The order now sought to be brought before us by appeal followed our remand for further proceedings. On the remand the amendments to which appellant objects as not permissible under statute and applicable principles of law were authorized by the Commission. Appellant urges that as a consequence of the erroneous action of the Commission, appellant is entitled to have its mutually exclusive application granted. We do not pass upon any of these questions at this time. If properly preserved and presented, they may be reviewed on appeal if the appellant’s application is refused by the Commission. This has not occurred. In the present status of the matter this court does not have statutory jurisdiction on appeal under § 402(b), supra, and no other source of jurisdiction to consider the appeal is available to us.
Dismissed.
. Other orders of the Commission are reviewable by a three-judge District Court under the terms of § 402(a).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_precedentalteration
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the opinion effectively says that the decision in this case "overruled" one or more of the Court's own precedents. Alteration also extends to language in the majority opinion that states that a precedent of the Supreme Court has been "disapproved," or is "no longer good law". Note, however, that alteration does not apply to cases in which the Court "distinguishes" a precedent.
MITCHELL v. W. T. GRANT CO.
No. 72-6160.
Argued December 4, 1973
Decided May 13, 1974
White, J., delivered-the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, post, p. 623. Brennan, J., filed a dissenting statement, post, p. 636. Stewart, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, and in which Brennan, J., joined in part, post, p. 629.
Robert J. Hobbs argued the cause for petitioner. With him on the briefs was John W. Reed.
Thomas J. O’Sullivan argued the cause for respondent.. With him on "the brief was Marshall J. Favret.
William J. Guste, Jr., Attorney General, Warren E. Mouledoux, First Assistant Attorney General, and Louis M. Jones, Assistant Attorney General, filed a brief for the State of Louisiana as amicus curiae.
Mr. Justice White
delivered the opinion of the Court.
In this case, a state trial judge in Louisiana ordered the sequestration of personal property on the application of a creditor.who had made an installment sale of the goods to petitioner' and' whose affidavit asserted delinquency and prayed for sequestration to enforce a vendor’s lien under state law. The issue is whether the sequestration violated the Due Process -Clause of the Fourteenth Amendment because it was ordered ex parte, without prior notice or opportunity for a hearing.
I
On February 2, 1972, respondent W. T. Grant Co. filed suit in the First City Court of the City of New Orleans, Louisiana, against petitioner, Lawrence Mitchell. The petition alleged the sale by Grant to Mitchell of a refrigerator, range, stereo, and washing machine, and an overdue and unpaid balance of the purchase price for said items in the amount of $574.17. Judgment for that sum was demanded. It was further alleged that Grant had a vendor’s lien on the goods and that a writ of sequestration should issue to sequester the merchandise pending the outcome of the suit. The accompanying affidavit of Grant’s credit manager swore to the truth of the facts alleged in the complaint. It also asserted that Grant had reason to believe petitioner would “encumber, alienate or otherwise dispose of the merchandise described in the foregoing petition during the pendency of these proceedings, and that a writ of sequestration is necessary in the premises.” Based on the foregoing petition and affidavit, and without prior notice to Mitchell or affording him opportunity for hearing, the judge of the First City Court, Arthur J. O’Keefe, then signed an order that “a writ of sequestration issue herein” and that “the Constable of this court sequester and take into his possession the articles of merchandise described in the foregoing petition, upon plaintiff furnishing bond in the amount of $1,125.” Bond in that amount having been' filed by the respondent, the writ of sequestration issúed, along with citation to petitioner Mitchell, citing him to file a pleading or make appearance in the First City Court of the eity of New Orleans within five days. The citation recited the filing of the writ of sequestration and the accompanying affidavit, order, and bond. On March 3 Mitchell filed a motion to dissolve the writ of sequestration issued on February 2. The motion asserted that the personal property at issue had been seized under the writ on February 7, 1972, and claimed, first, that the goods were exempt from seizure under state law and, second, that the seizure violated the Due Process Clauses of the State and Federal Constitutions in that it had occurred without prior notice and opportunity to defend petitioner’s right to possession of the property. The motion came on for hearing on March 14. It was then stipulated that -a vendor’s lien existed on the items, arguments of counsel were heard, and on Márch 16 the motion to dissolve was denied. The goods were held not exempt from seizure under state law. The trial court also ruled that “the provisional seizure enforced through sequestration” was not a denial of due process of law. “To the. contrary,” the trial judge said, “plaintiff insured defendant’s right to due process by proceeding in accordance with Louisiana Law as opposed to any type of self-help seizure which would have denied defendant possession of his property without due process.” The appellate courts of Louisiana refused’to disturb the rulings of the trial court, the Supreme Court of Louisiana expressly rejecting petitioner’s due process claims pressed under the Federal Constitution. 263 La. 627, 269 So. 2d. 186 (1972). We.granted certiorari, 411 U. S. 981 (1973), and now.affirm the judgment of the Louisiana Supreme Court.
11
Petitioner’s basic proposition is that because he had possession of and a substantial interest in the sequestered' property, the Due Process Clause of the Fourteenth Amendment necessarily forbade the seizure without prior notice and- opportunity for a hearing. In the circumstances presented.here; we. cannot'agree. •
Petitioner no doubt “owned” the goods he had purchased under an installment sales contract, but his title was heavily encumbered. The seller, W. T. Grant Co., also had an interest in the property, for state law provided it with a vendor’s lien to secure the unpaid balance of the purchase price. Because of the lien, Mitchell’s right to possession and his title were subject to defeasance in the event of default in paying the installments due from him.' His interest in the property, until the purchase price was paid in full, was no greater than the surplus remaining, if any, after foreclosure and sale of the property in the event of his default and satisfaction of outstanding claims. See La. Code Civ. Proc. Ann., Art. 2373 (1961). The interes^ of Grant, as seller of the property and holder, of a vendor’s lien, was measured by the unpaid balance of the purchase price. The monetary value of that interest in the property diminished as pay-* ments were made, but the value of the property as security also steadily diminished over time as it was put to its-intended use by the purchaser.
Plainly enough, this is not a case where the property sequestered by the court is exclusively the property of the defendant debtor. The question is not whether a debtor’s property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had current, real interests in the property, and the definition of. property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property.but'those of the seller as well.-
With this duality in mind, we are convinced that the Louisiana sequestration procedure is not invalid, either on its face or as applied. Sequestration under the Louisiana statutes is the modern counterpart of an ancient civil law dévice to resolve conflicting claims to property. Historically, the two principal concerns have been that, pending resolution of the dispute, the property would deteriorate or be wasted in the hands of the possessor and that the latter might sell or otherwise dispose • of the goods. A minor theme was that official intervention would forestall violent self-help and retaliation. See Millar, Judicial Sequestration in Louisiana: Some Account of Its Sources, 30 Tul. L. Rev. 201, 206 (1956).
Louisiana statutes provide for sequestration where “one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon... if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.” Art. 3571. The writ, however, will not issue. on the conclusory allegation of ownership or possessory rights. Article 3501 provides that the writ of sequestration shall issue “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts” shown by a verified petition or affidavit. In the parish where this case arose, the clear showing required must be made to a judge, and the writ will issue only upon his authorization and only after the creditor seeking the writ has filed a sufficient bond to protect the vendee ¿gainst all damages in the event the sequestration is shown to have been improvident. Arts. 3501 and 3574.
The writ is obtainable on the creditor’s ex parte application, without notice to the debtor or opportunity for a healing, but the statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor “proves the grounds upon which the writ was issued,!’ Art. 3506, the existence of the debt, lien, and delinquency, failing which the court may order return of the property and assess damages in favor of the debtor, including.attorney’s fees.
The debtor, with or without moving to dissolve the sequestration,' may also regain possession by filing his own bond to protect the creditor against interim damage to him should he ultimately win his case and have judgment against the debtor for the unpaid balance of the purchase price which was the object of the suit and of the sequestration. Arts. 3507 and 3508.
In our view, this. statutory procedure effects a constitutional accommodation of the. conflicting interests of the parties. We cannot accept petitioner’s broad assertion that the Due Process Clause of the Fourteenth Amendment guaranteed to him the. use arid possession of the goods until all issues in thé case were judicially resolved after full adversary proceedings had been completed. It is_ certainly clear under this Court’s precedents. that issues can be limited in actions for possession. Indeed, in Grant Timber & Mfg. Co. v. Gray, 236 U. S. 133 (1915) (Holmes, J.), the Court upheld such limitations in possessory actions for real property in Louisiana. See also Bianchi v. Morales, 262 U. S. 170 (1923); Lindsey v. Normet, 405 U. S. 56 (1972). Petitioner’s claim must accordingly be narrowed to one for a hearing on the issues in the possessory action-default, the existence of a lien, and possession of the debtor — before property is taken.
As to this claim, the seller here, with a vendor’s lien to secure payment of the unpaid balance of purchase-price, had the right either to be paid in accordance with its contract or to have possession of the goods for the purpose of foreclosing its lien', and recovering the unpaid balance. By complaint and -affidavit, the seller swore to facts that would entitle it to immediate possession of the goods under its contract, undiminished in value by further deterioration through use of the property by the buyer. Wholly aside from whether the buyer, with possession and power over the property, will destroy or make away with the goods, the buyer in possession of consumer goods will undeniably put the property to its intended use, and the resale value of the merchandise will steadily decline as it is used over a period of time. Any installment seller anticipates as much, but he is normally protected because the buyer’s installment payments keep pace with thq deterioration in value of the’ security. Clearly, if payments cease and possession and use by the buyer, continue, the seller’s interest in the property as security is steadily and irretrievably eroded until thé time at which the full hearing is held.
The State of Louisiana was entitled to recognize this reality and to provide somewhat more protection for the seller. This it did in Orleans Parish by authorizing, the sequestration of property by a judge. At the same time, the buyer being deprived of possession, the seller was required to put up a bond to guarantee the buyer against damage or expense, including attorney’s fees, in the event the sequestration is shown to be mistaken or otherwise improvident. The buyer is permitted to regain possession by putting up his' own bond tó. protect the seller. Absent that bond,, which petitioner did not file in this- case;' the seller would be unprotected against the inevitable deterioration in the value of his security if the buyer remained in possession pending trial on the merits. The debtor, unlike the creditor, does not stand ready to make the opposing party whole,, if his possession, pending a prior hearing, turns out to be wrongful.
Second, there is the real risk that the buyer, with possession and power over the goods, will conceal or transfer the merchandise to the damage of' thé seller. This is one of the considerations weighed-in the balance by the Louisiana law in permitting initial sequestration.of the property. An important factor in.this-connection is that under -Louisiana law, the vendor’s- lien expires if the buyer transfers possession.- It follows that if' the.vendor is to retain his lien, superior to the rights of other creditors of the buyer, it is imperative when default occurs that the property be sequestered in order,.to foreclose the possibility that the buyer will sell or otherwise convey the property to third'parties against whom the -vendor’s lien will not survive. The danger of destruction or alienation cannot be-guarded against if notice and a hearing -before seizure are supplied.' The^ -notice itself may furnish a warning to the debtor acting in bad faith.
Third, there is scant support in our cases for.- the proposition that there must be final judicial determination of the seller’s entitlement before the buyer may be even temporarily-deprived of possession of the purchased* goods. On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed to warrant the bonded'sequestration of the property., pending outcome of the suit. Cf. Bell v. Burson, 402 U. S. 535 (1971); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950). The issue at this stage of the proceeding concerns possession pending trial and turns on the existence of the debt, the lien;, and the delinquency. These are. ordinarily uncomplicated matters that lend themselves, to documentary proof; and we think it comports with due process to- permit the, initial seizure on sworn ex parte documents, followed by the. early opportunity to put the creditor to his proof. The nature of the issues at stake minimizes thé risk that the writ will be wrongfully issued by a judge. The potential damages award available, if there is a successful motion to dissolve the writ, as well as the creditor’s own interest in avoiding interrupting the transaction, also contributes to minimizing this risk.
Fourth, we remain unconvinced that the impact on the debtor of deprivation of the household goods here in question overrides his inability to make the creditor whole for wrongful possession, the risk of destruction or alienation if notice and a prior hearing are supplied, and the low risk of- a wrongful determination of possession through the procedures now employed.
Finally, the debtor may immediately have a full hearing on the matter of possession following the execution of the writ, thus cutting to a bare minimum the time of creditor- or court-supervised possession. The debtor in this case, who did not avail himself of this opportunity, can hardly expect that his argument on the severity of deprivation will carry much weight, and even assuming that there is real impact on the debtor from loss of these goods, pending the hearing on possession, his basic, source of income is unimpaired.
The requirements of due process of law “are not technical, nor is any particular form of procedure necessary.” Inland Empire Council v. Millis, 325 U. S. 697, 710 (1945). Due process of law guarantees “no particular form of procedure; it protects substantial rights.” NLRB v. Mackay Co., 304 U. S. 333, 351 (1938). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961); Stanley v. Illinois, 405 U. S. 645, 650 (1972). Considering the Louisiana procedure as a whole, we are convinced that the State has reached a constitutional accommodation of the respective interests of buyer and seller.
III
Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), and Fuentes v. Shewn, 407 U. S. 67 (1972). The pre-Sniadach cases are said by petitioner to hold that “the opportunity to be heard must precede any actual deprivation of private property.” Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been “[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate- judicial determination of liability is adequate.” Phillips v. Commissioner, 283 U. S. 589, 596-597 (1931). See also Scottish Union & National Ins. Co. v. Bowland, 196 U. S. 611, 632 (1905); Springer v. United States, 102 U. S. 586, 593-594 (1881). This generality sufficed to decide relatively modern cases. For example, in Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950), the statute at issue permitted-multiple seizures of misbranded articles in commerce “ ‘when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of thé Agency that the misbranded article... would be in a material respect misleading to the injury or damage. of thé purchaser or consumer.’ ’’ Id., at 595-596. The specific seizure challenged, made administratively without prior notice or hearing, concerned a concentrate of alfalfa, watercress, parsley, and synthetic vitamins, combined in a package with mineral tablets. There was no claim or suggestion of any. possible threat to health. The sole official claim was that the labeling was misleading to the alleged damage of the purchaser. The Court sustained the ex parte seizure saying that “[w]e have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective.” Id., at 598. “It is sufficient, where only property rights' are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.” Id., at 599.
More precisely in point, the Court had unanimously approved prejudgment attachment liens effected by creditors, without notice, hearing, or judicial order, saying that “nothing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit.” “The fact that the execution is issued in the first instance by an agent of the State but not from a Court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection.” Coffin Bros. v. Bennett, 277 U. S. 29, 31 (1928). To the same effect-was the earlier case of Ownbey v. Morgan, 256 U. S. 94 (1921). Furthermore, based on Ownbey and Coffin, the Court later sustained the constitutionality of the Maine attachment statute. McKay v. McInnes, 279 U. S. 820 (1929). In that case, a nonresident of Maine sued in the Maine courts to collect a debt from a resident of the_ State. As permitted-by statute, and as an integral part of instituting the suit, the creditor attached the properties of the defendant, without notice and without judicial process of any kind. In sustaining the procedure, the Maine Supreme Court, 127 Me. 110, 141 A. 699 (1928), described the attachment as designed to create a lien for the creditor at the outset of the litigation. “Its purpose is simply to secure to the creditor the property which the debtor has at the time it is made.so that it may be seized and levied upon in.satisfaction of the debt after judgment and execution may be obtained.” Id., at 115, 141 A., at 702. The attachment was deemed “part of the remedy provided for the collection of the debt,” ibid., and represented a practice that “had become fully established in Massachusetts, part of which Maine was at the time of the adoption of the Federal Constitution.” Id., at 114, 141 A., at 702. The judgment of the Maine court was affirmed without opinion, citing' Ownbey and Coffin.
In Sniadach v. Family Finance Corp., supra, it was said that McKay and like cases dealt with “[a] procedural rule that may satisfy due process- for attachments in general” but one that would not “necessarily satisfy'procedural due process in every case,” nor one that “gives necessary protection to all property in its modern forms.” 395 U. S., at 340. Sniadach involved the prejudgment garnishment of wages — “a specialized type of property presenting distinct problems in our economic system.” Ibid. Because “[t]he leverage of the creditor on the wage earner is enormous” and because “prejudgment, garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall,” it was held- that, the Due Process Clause forbade such garnishment absent notice and prior hearing. Id., at 341-342.' In Sniadach, the Court also. observed that garnishment was subject to abuse' by creditors without valid claims, a risk minimized by the nature of the security interest here at stake and the protections to the.debtor offered by Louisiana procedure. Nor was it apparent in Sniadach with what speed the debtor could challenge the validity of the garnishment, and obviously the ■ creditor’s claim could not rest on the danger of. destruction of wages, the property seized, since their availability to satisfy the debt remained within the power of the debtor-who could simply leave his job. The suing creditor in- Sniadach had no prior interest in the property attached, and the opinion did not purport to govern' the typical case of the installment seller who brings a suit to collect ’an unpaid balance and who does not seek to attach-^ wages pending the outcome of the suit but to repossess the sold property on which he_had retained a lien to secure the purchase price. This very case soon came before the Court in Fuentes v. Shevin, where the constitutionality of the Florida and Pennsylvania replevin statutes was at issue. Those statutes permitted the secured installment seller to repossess the goods sold, without notice or hearing and without judicial order or supervision, but with the help of the sheriff operating under a writ issued by the court clerk at the behest of the seller. Because carried out without notice or opportunity for hearing and without judicial participation, this kind of seizure was held violative of the Due Process Clause. This holding is the mainstay of petitioner’s submission here. But we are convinced that Fuentes was decided against a factual and legal background sufficiently different from that now before us and that it does not require the invalidation of the Louisiana sequestration statute, either on its face or as applied in this case.
The Florida law under examination in Fuentes authorized repossession of the sold goods without judicial order, approval, or participation. A writ of replevin was employed, but it was issued by the court clerk. As the Florida law was perceived by this Court, “[t]here is no requirement that the applicant make a convincing showing before the seizure,” 407 U. S., at 73-74; the law required only “the bare assertion of the party seeking.the writ that he is entitled to one” as a condition to the clerk’s issuance of the writ. Id., at 74. The Court also said that under the statute the defendant-buyer would “eventually” have aft opportunity for a hearing, “as the defendant in the trial of the court action for repossession....” Id., at 75. The Pennsylvania 'law. was considered to be essentially the same as that of Florida except that it did “not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property.” Id., at 77. The party seeking the writ was not obliged to initiate a court action for repossession, was not required formally to allege that he was entitled to the property and had only to file an affidavit of the-value of the property sought to be replevied. The Court distinguished - the Pennsylvania and Florida procedures from that of the common daw where, the- Court said,, “a state official made at least a summary determination of the relative right's of the disputing parties before.stepping into the dispute and taking goods from one of them.” Id., at 80.
The Louisiana sequestration statute followed, in this, case mandates a considerably different procedure.' A writ of sequestration is available to a mortgage or lien holder to forestall waste or "alienation of the property, but, different from the' Florida and Pennsylvania"' systems, bare, c'onclusory. claims of ownership or lien will not suffice under the Louisiana statute. Article 3501 authorizes the writ “ofily when the nature of the claim and the amount.thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from spéeific facts” shown by verified petition or affidavit. Moreover, in the parish where this.case arose, the.requisite showing must be made to a judge; and judicial authorization obtained. Mitchell was not at the unsupervised mercy of the creditor and court functionaries; The Louisiana law provides for judicial control of the process from beginning to end. This control is one of the measures adopted by the State to minimize the riék that the ex parte procedure will lead to a wrongful taking. It is buttressed by the provision that should the-writ be dissolved there are “damages for the wrongful issuance of a writ” and for attorney’s fees “whether the writ is dissolved on motion or after trial on the merits.” Art. 3506.
. The risk of wrongful use of the procedure must also be judged in the context of the issues which are to be determined at that proceeding. In Florida and Pennsylvania property was only to be replevied in accord with state' policy if it had been “wrongfully detained.” This broad “fault” standard is inherently subject to factual determination and adversarial input. As- in Bell v. Burson, where a driver’s license was suspended, without a prior hearing, when the suspension was premised on a fault standard, see Vlandis v. Kline, 412 U. S. 441, 446-447 (1973), in Fuentes this fault standard.for replevin was thought ill-süited for preliminary ex parte determination. ’ In Louisiana, on the other hand, the facts relevant to obtaining a writ of sequestration are narrowly confined. As wé have indicated, documentary proof is particularly suited for questions of the existence of a vendor’s lien and.the issue of default. There is thus.far less danger here that the seizure will •be mistaken and a corresponding decrease in the utility of an adversary hearing which will be immediately available in any event.
Of course, as in Fuentes, consideration of the impact on the debtor remains. Under Louisiana procedure, however, the debtor, Mitchell, was not left in limbo to await a hearing that might- or might not “eventually!’ occur, as the debtors were under the statutory schemes before the Court in. Fuentes. Louisiana law expressly provides for an immediate hearing and dissolution of the writ “unless the plaintiff proves the grounds upon which the writ'-was issued.” Art. 3506.
To summarize, the Louisiana system seeks to minimize the risk of error of a wrongful interim possession by the creditor. The system protects the debtor’s interest in every conceivable way, except allowing him to have the property to start with, and this is done in pursuit of what we deem an acceptable arrangement pendente lite to put the property in the possession of the party who furnishes protection against loss or damage to the other pending trial on the merits.
The Court must be. sensitive to the possible consequences, already foreseen in antiquity, of invalidating.this state statute. Doing.'so might not increase private violence,, but self-help repossession could easily lessen protections for the debtor. See, for example, Adams v. Southern California First National Bank, 492 F. 2d 324 (CA9 1973). Here, the initial hardship to the’debtor is limited, the seller has a strong interest, the process proceeds under judicial supervision and.management, and the prevailing party is protected against all. loss. Our conclusion is that the Louisiana standards regulating the use of the writ of sequestration are constitutional. Mitchell was not deprived of procedural due process in this case. The judgment of the Supreme Court of Louisiana is affirmed.
So ordered.
APPENDIX TO OPINION OF THE COURT STATUTES
PROVISIONS OF THE LOUISIANA CODE OF CIVIL PROCEDURE
Art. 281. Certain articles not applicable to Civil District Court for the Parish of Orleans
The provisions of Articles 282 through 286 do not apply to the clerk and the deputy clerks of the Civil District Court for the Parish of Orleans.
Art. 282. Acts which may be done by district court clerk
The clerk of a district court may:
(1) Grant an appeal and fix the return day thereof; fix the amount of the bond for an appeal, or for the issuance of a writ of attachment or of sequestration, or for the release of property seized under any writ, unless fixed by law; appoint an attorney at law to represent a nonresident, absent, incompetent, or unrepresented defendant; or dismiss without prejudice, on application of plaintiff, an action or proceeding in which no exception, answer, or intervention has been filed; and....
Art. 283. Orders and judgments which may be signed by district court clerk
(2) An order for the issuance of executory process, of a writ of attachment or of sequestration, or of garnishment process under a writ of fieri facias, attachment, or of séquestration; the release under.bond of property seized under a writ of attachment or of sequestration; or to permit the filing of an intervention....
Art. 325. • Right of entry for execution; may require assistance of others if resistance offered or threatened
In the execution of a writ, mandate, order, or judgment of a court, the sheriff may enter on the lands, and. into the residence or other building, owned or occupied by "the judgment debtor or defendant..
Art. 2373. Distribution of proceéds of sale
After deducting the costs, the sheriff shall first,pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall, pay to the debtor whatever -surplus may remain.
Art. 3501. Petition; affidavit; security
A writ of attachment or of sequestration shall issue only when the nature of. the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
. The applicant shall, furnish security as required by law for the payment of the damages the defendant may sustain, when the writ is obtained wrongfully.
Art. 3504. Return of sheriff; inventory
The sheriff, after executing a writ of attachment or of sequestration, shall deliver to the clerk of the court from which the writ issued a written return stating the manner in which he executed the writ. He shall annex to the return an inventory of the property seized.
Art. 3506. Dissolution of writ; damages
The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
.The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection”with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.
Art. 3507, Release of property by defendant; security
A defendant may obtain the release of the property seized under a writ of attachment or of sequestration by furnishing security for the satisfaction of any judgment which may be rendered against him.
Art. 3508. Amount of security for release of attached or sequestered property
The security for the release of property seized under a writ of attachment or of sequestration shall exceed by one-fourth the vklue of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.
Art. 3510. Necessity for judgment and execution
Except as provided in Article 3513 [perishables], a final judgment must be obtained in an action where a writ of attachment or of sequestration has issued before the property seized can be sold to satisfy the claim.
Art. 3571. Grounds for sequestration
When one claims the ownership or. right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.
Art. 3574. Plaintiff’s security
An applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficiént to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law..
Art. 3576. Release of property under sequestration
If the defendant does not effect the release of property seized under a writ of sequestration, as permitted by Article 3507, within ten days of the seizure, the plaintiff may effect the release thereof by furnishing the security required by Article 3508.
The motion asked for dissolution of the writ with respect to the refrigerator, stove, and washer. For some reason, unexplained by the parties, the motion was not addressed to the stereo.
There is some dispute between the parties as to when the writ was actually executed by the sheriff. The sheriff’s return, furnished by petitioner but apparently not in the record below, indicates that execution was on the 18th of February, rather than on the 7th. The Louisiana Supreme Court assumed that the writ was executed on the 7th. Because we see no legal consequence attaching to a choice of dates, we assume for purposes ■ <ff decision that the writ was executed on the 7th.
Article 2373 and other pertinent provisions of the Code, including those referred to in the text, are set out in the Appendix to this opinion.
Historically, the writ would issue only if the creditor had “good reason to fear” that' the debtor would damage, alienate or waste the goods, and the creditor was required to show the grounds for such fear. Under present law, however, the apprehension of the creditor is no longer the issue, and the writ may be obtained when the goods are within the power of the debtor. Reporter’s Comment (a) to La. Code Civ. Proe. Ann., Art. 3571. The necessity of showing such “power” is not irrelevant, because the vendor’s privilege will not lie against goods not within the “power” of the debtor, Margolin, Civil Law, Vendor’s Privilege, 4 Tul. L. Rev. 239 (1930); H. Daggett, On Louisiana Privileges and Chattel Mortgages §51 (1942).
Articles 282 and 283 of the Code provide, generally, that the court clerk may issue writs of sequestration. But Art, 281 confines the authority to the judge in Orleans Parish. There is no dispute in this case that judicial authority for the writ was required and that it was obtained as the statute requires. The validity of procedures obtaining in áreas, outside Orleans Parish is not at issue.
As previously noted, the judgment prayed for in this, case-was in the amount of $574.17. ^Grant was ordered to furnish security in the amount of $1,125.
When a writ is issued by the judge, it is served upon.the debtor by the sheriff, Art. 3504, who thereafter becomes responsible for the property's safekeeping. See Johnson, Attachment and Sequestration: Provisional Remedies Under the Louisiana Code of Civil-Procedure, 38 Tul. L. Rev. 1, 21-22 (1963). The plaintiff-creditor, however, see Art. 3576, may himself-take possession of the goods if the defendant within 10 days does not secure possession of the goods by posting his own bond as permitted by
Question: Did the the decision of the court overrule one or more of the Court's own precedents?
A. Yes
B. No
Answer:
|
songer_const1
|
105
|
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.
John BATTERTON, et al., Plaintiffs-Appellants, v. The TEXAS GENERAL LAND OFFICE, et al., Defendants-Appellees.
No. 84-1961.
United States Court of Appeals, Fifth Circuit.
March 3, 1986.
Rehearing Denied May 12,1986.
Connie Ode, Bunton, Nolan, Ode & Cooper, Margaret A. Cooper, Austin, Tex., for plaintiffs-appellants.
F. Scott McCown, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellees.
Before GEE, RUBIN and DAVIS, Circuit Judges.
GEE, Circuit Judge: ■
Today’s case requires us to decide whether the dismissal of four employees of the Texas General Land Office (GLO) violated their constitutional rights. The appellant employees maintain that a Texas statute grants them a property interest in their jobs or, in the alternative, that informal practices within the department do so, as well as that their discharges violated first amendment rights. The trial court entered summary judgment against them, and we affirm.
Appellants were employees of the GLO in January 1983, when appellee Garry Mauro took office as Land Commissioner. Claiming a need for reorganization, Mauro moved swiftly to dismiss employees, discharging the four appellants as of the end of May 1983. Shortly afterwards, they brought a 42 U.S.C. § 1983 action against Mauro and the GLO (hereinafter referred to collectively as Mauro). The original complaint asserted a reasonable expectation of continued employment so long as they satisfactorily performed their duties and that consequently Mauro violated their procedural due process rights by dismissing them without satisfactory cause or a fair hearing. When Mauro moved for summary judgment in July 1984, the employees amended their complaint to add a nebulous first amendment claim — unavailingly, in the event, as the district court entered summary judgment against them on the entire case in September 1984. See Batterton v. Texas General Land Office, 593 F.Supp. 372 (W.D.Texas 1984). The employees appeal.
In reviewing the appeal, we first note the conceptual difference between the due process and the first amendment claims. As the Supreme Court has made clear, the two are distinct:
... [E]ven though a person has no “right” to a valuable governmental benefit and even though the government may, deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially his interest in freedom of speech.
Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). Separate consideration of the two claims is therefore appropriate.
THE DUE PROCESS CLAIM
The employees assert a property interest in their jobs, invoking the line of Supreme Court cases that began with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Sindermann. Considering a teacher’s asserted right of continued employment, the Roth court refused to base the concept of property on an employee’s mere expectation; “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it.” 408 U.S. 577, 92 S.Ct. 2709. The due process clause can protect a public employee, however, should state law provide the basis of an employee’s legitimate claim to entitlement:
... [Property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Id; see also Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976). If a property interest exists, procedural due process then accords such rights as those to notice and a hearing before the employee may be fired. We must first see, therefore, whether Texas law provides GLO employees with any legitimate claim of entitlement to their jobs.
The district court accurately labeled § 31.020, Texas Natural Resources Code, as “the center of the maelstrom.” 593 F.Supp. at 373. Dealing with the conditions of employment for GLO employees, § 31.020 provides:
(b) Clerks and employees of the land office shall hold their offices and positions at the pleasure of the commissioner and may be removed by him at any time for satisfactory cause.
Although the parties advance differing interpretations of this provision, the simple truth is that neither we nor anyone else can tell with any real assurance what it was that the Texas legislature intended when it originally enacted this statute over a century ago, in 1879. Obvious ambiguity results from the provision’s contradictory phrases: On the one hand, one who holds his jobs “at the pleasure of the commissioner” sounds a great deal like an at-will employee; on the other, dismissal “for satisfactory cause” seems to restrict the commissioner’s ability to fire his employees to discharges for cause. We have found no Texas case interpreting the quoted provision, nor does any legislative history exist.
Texas common law, however, provides rules of statutory interpretation, rules that we shall consider in construing § 31.020. Our reference to these is not mandated by Erie RR Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny; subject-matter jurisdiction today is based on a federal question, not on diversity of citizenship. Reason dictates, however, that in deriving a meaning from the statute’s words we should approach them exactly as would a Texas court, since had we discovered an authoritative interpretation by such a court we would have adopted it and since, should any come later, it will of necessity supersede ours. It would make little sense for us to proceed to an aberrant construction by refusing to apply state canons, canons which will in all probability govern any authoritative construction which the statute ever receives. Turning to these, we find them dispositive.
In Stanford v. Butler, 142 Tex. 692, 699-702, 181 S.W.2d 269, 273-74 (1944), the court held that if an ambiguous statute “has been construed by executive officers of the state charged with its execution, and it has subsequently been re-enacted without substantial change in language, it will continue to receive the same construction.” Because § 31.020 has been re-enacted several times, most recently in a 1977 codification, evidence of past commissioners’ interpretations becomes crucial. Appellees submitted affidavits of three former chief clerks of the GLO in support of their summary judgment motion. These men, whose combined years of service stretched from 1940 to 1983, all swore that the commissioners under whom they had served uniformly interpreted § 31.020 as granting them the power to fire any employee for any reason. The employees presented no evidence contradicting these affidavits; and while they point to an office policy manual and to current customs, none of these predates the 1977 codification of the statute. Stanford therefore teaches us that the 1977 codification of § 31.020 transformed the commissioners’ existing interpretation of the statute into law, and that GLO employees can be fired for any reason.
We note that while even standing alone Stanford would mandate this conclusion, other rules bolster its force. Texas law, for example, would regard the ambiguity of § 31.020 as requiring an interpretation favorable to the GLO:
[Legislative grants of property, rights or privileges must be construed in favor of the state on grounds of public policy and whatever is not unequivocally granted in clear and explicit terms is withheld. Any ambiguity or obscurity in terms of the statute must operate in favor of the state.
State v. Standard, 414 S.W.2d 148, 153 (1967), quoting Empire Gas & Fuel Co. v. State, 121 Tex. 138, 157-59, 47 S.W.2d 265, 272 (1932). Those unpersuaded by the authority of Stanford would therefore confront further obstacles to any contrary result.
Our interpretation complete, we must now acknowledge that the letter of state law alone is not necessarily determinative. In Roth, the Court held that property interests “are created and their dimensions are defined by existing rules or understandings that stem from ... state law.” 408 U.S. at 577, 92 S.Ct. at 2709. (emphasis added); see also Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (teacher can have property interest in his job even absent formal contractual tenure provision if an informal understanding with the college administration existed). We have taken our cue from these cases to recognize that a property right might be based on “mutually explicit understandings.” See, e.g., Wells v. Hico Independent School District, 736 F.2d 243, 252 (5th Cir.1984), cert. dismissed — U.S.-, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985), quoting Sindermann, 408 U.S. at 601, 92 S.Ct. at 2699. In today’s case, the employees introduced affidavits and depositions asserting that GLO practice during their period of employment (from about 1978 to 1983) was to provide adequate notice of planned dismissal and the opportunity to improve one’s performance. On appeal, they argue that this practice sufficed to create a legitimate claim of entitlement protected by the fourteenth amendment.
Once § 31.020 is construed as establishing at-will employment, however, cases such as Sindermann became readily distinguishable from today’s. They are all cases in which no statute resolved whether a property interest in one’s job existed. The Supreme Court’s holding that an informal understanding may lead to a property interest must therefore be recognized as standing in the absence of an officially promulgated position, one way or the other, on the issue of a teacher’s tenure. Here, we have interpreted § 31.020 as establishing a clear and official stand; having done so, we conclude that informal understandings and customs contrary, and subsequent, to the enactment of that statute cannot be the source of an employee’s property interest. We reiterate the language of Roth that understandings and customs must “stem from ... state law.” 408 U.S. at 577, 92 S.Ct. at 2709. To say that customs entirely contrary to a statute’s meaning may stem from that statute would defy reason; only if consistent with official law may such practices create a property interest in one’s job.
Our holding finds support in Hico Independent School District. We there ruled that the school district’s custom of providing certain grievance and evaluation procedures could not create property interests in the face of Texas law that failed to provide any basis for a claim of entitlement. See 736 F.2d at 252-54. Nor are we alone in recognizing such a rule. In Baden v. Koch, 638 F.2d 486 (2nd Cir.1980), for example, considering the assertion that an informal understanding between the mayor of New York and the city’s chief medical examiner prevented the mayor from exercising his statutory authority to fire the examiner at will, the Second Circuit held that a mutual understanding cannot create a property interest contrary to state law. See id. at 492-93.
Despite the factual dispute over GLO’s practices after 1977, summary judgment was appropriate. Events occurring after 1977 are immaterial in determining whether a constitutional violation occurred. This being so, only the resolution of a legal issue — what § 31.020 means — was required. The district court’s interpretation of the provision was proper; we therefore affirm summary judgment as to the employee’s claim of a due process violation.
THE FIRST AMENDMENT CLAIM
The employees also contend that the district court improperly entered summary judgment on the entire case because the appellees failed to rebut their first amendment claim. Our review begins with a chronicle of the rather complex procedural history preceding the court’s summary judgment order. The employees’ original complaint did not contain a first amendment claim. On July 11, 1984, both sides filed motions for summary judgment. Three weeks later, the employees filed an amended complaint containing the first reference to their first amendment rights: an assertion that these were violated because Commissioner Mauro fired the plaintiffs to free positions for his political supporters. After this filing, the appellees continued to press for summary judgment on the entire case, without specific reference to the new claim. In response, the employees neither mentioned the claim again nor presented matter supporting it. At a summary judgment hearing held on September 7, 1984, the first amendment allegation was ignored by both sides. After the district court’s entry of summary judgment in the appellees’ favor, however, the employees filed a motion to alter or amend judgment, noting the existence of the first amendment claim. Appellees retorted that the employees had waived this claim, and the motion to alter or amend was denied.
Under Fed.R.Civ.P. 56(a) and (b), a party may move for summary judgment without affidavits or other supporting evidence. Should he submit such material, however, Rule 56(e) imposes upon the other party the duty to present factual matter in his defense:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits and as otherwise provided on this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
The district court believed that the employees were required to present specific facts supporting the first amendment claim to avoid summary judgment. The employees now argue that this belief improperly burdened them with the duty to present specifics. In so arguing, they assume the appellees’ failure to address first amendment claim, but while the appellees never referred to the claim explicitly, some of their evidence rebuts the claim. Appellee Mauro asserted in both a deposition and an affidavit that the dismissals stemmed from his honest effort to streamline the GLO, and his statements are bolstered by the affidavits of non-party officials of the GLO and by other documentation. The employees, on the other hand, failed to support their claim except with the following bald and conclusory assertion:
[T]he purported reorganization of the General Land Office was in fact a pretextual afterthought to justify dismissals in order that Garry Mauro might extend political patronage to friends and supporters by removing existing career employees from the General Land Office in order to free budget funds to pay substantial salaries for those persons he wished to install in positions in the Land Office.
This pronouncement appears, word for word, in the affidavits of three of the appellant employees, but, unsupported by details or other evidence, it does little more than clarify the nebulous first amendment claim in the amended complaint.
The employees’ failure to come forward with specifics recalls the decision in Hargrave v. Fibreboard Corp., 710 F.2d 1154 (5th Cir.1983). There, appellant Nicolet, Inc. filed a complaint alleging alter ego liability, successorship liability, and contribution or indemnity as three alternative theories of appellee Turner & Newall, Ltd.'s liability. The subsequent procedural disposition of its claim is similar to that here:
Although the district court’s memorandum opinion supporting the grant of summary judgment for T & N discussed only the alter ego liability issue, the order granting summary judgment purported to dispose of Nicolet’s entire case against T & N____ Our review of the record indicates that Nicolet failed to set forth specific facts raising a genuine triable issue on its theories of successor-ship liability and contribution or indemnity. Although the complaint refers to both of these grounds of recovery, Nicolet never broached them again until this appeal. Neither Nicolet’s brief in opposition to T & N’s motion for summary judgment nor its comments at oral argument on the summary judgment motion mentioned a single fact that would trigger a genuine issue on these theories.
Id. at 1163-64. Acknowledging the drastic nature of summary judgment, we nevertheless affirmed its entry in Hargrave because of Nicolet’s failure to demonstrate an actual dispute over material facts.
Hargrave supports affirmance here. While it is true that the employees reminded the district court of the first amendment claim in their motion to alter or amend judgment (thereby distinguishing today’s case from Hargrave), the court was under no duty to grant that motion. A district court’s decision to deny a motion to alter or amend judgment may be reviewed only for an abuse of discretion. See Weems v. McCloud, 619 F.2d 1081, 1098 (5th Cir.1980). To regard the district court’s decision as improper would only be to reward the employees’ lack of diligence. They had enough time before the summary judgment hearing to unearth any helpful evidence, yet failed to produce anything beyond unembellished assertions that properly belong in a well-pled complaint. We therefore decline to fashion for them any excuse for their failure to comply with the clear requirements of Rule 56(e).
The district court’s order of summary judgment is accordingly
AFFIRMED.
. Like Sindermann, Roth was a case in which no statute was involved. The general scope of its language, however, appears applicable even in cases such as this, in which a statute is the focus of the determination whether due process is owed.
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_casetyp1_7-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Rudolph Valentino DI GIOVANNI, an infant, by his mother and next friend, Elise Heguy DiGiovanni, et al., Appellants, v. Abraham RIBICOFF, Secretary of Health, Education, and Welfare, Appellee.
No. 15842.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 18, 1961.
Decided Feb. 23, 1961.
Mr. Walter J. Murphy, Jr., Washington, D. C., with whom Mr. Samuel B. Block, Washington, D. C., was on the brief, for appellants.
Mr. Donald S. Smith, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.
Before Edgerton, Bazelon, and Fahy, Circuit Judges.
PER CURIAM.
Beulah Countiss was divorced from Paul R. Pearson, in Virginia, on January 17, 1944. At that time a Virginia statute prohibited remarriage of either party for six months. On June 24, 1944, the prohibited period was reduced to four months by amendment and re-enactment of the statute, [Code 1919, § 5113 as amended by Acts 1944, c. 142]. Thereafter, on July 1, 1944, more than five months after the divorce decree was entered, Beulah Countiss entered into a ceremonial marriage in the District of Columbia with Pasquale DiGiovanni. In our opinion that marriage was valid because the reduction in the suspension period had freed Beulah to marry.
The parties to that marriage lived together for some years. Pasquale and the present appellant began living together in 1950 and a child was born to them in 1951. Pasquale died in 1952. Beulah was still alive. Her marriage to Pasquale was never dissolved. Pasquale was therefore incapable of marrying the appellant. Accordingly the Social Security Administration and the District Court were right in rejecting appellant’s claim to benefits as the widow of Pasquale. Their decision that an illegitimate child is not entitled to the claimed Social Security benefits is unchallenged and we do not rule upon it. 42 U.S.C.A. § 416(h) (2); D.C.Code,. Supp. VIII, 1960, § 18-716.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_respond2_7_3
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Yasuko N. SAKAMOTO, Administratrix of the Estate of Henry H. Sakamoto, for the Benefit of Yasuko N. Sakamoto, Next Friend and Mother of Taro Sakamoto, a Minor, and Hanako Sakamoto, a Minor, Plaintiffs-Appellees, v. N.A.B. TRUCKING CO., INC., and John A. Walkup, Defendants-Appellants.
No. 82-5452.
United States Court of Appeals, Sixth Circuit.
Argued June 27, 1983.
Decided Sept. 27, 1983.
Rehearing Denied Nov. 2, 1983.
Samuel R. Anderson (argued), Luther, Anderson, Cleary & Ruth, Kenneth R. Starr, Chattanooga, Tenn., for defendants-appellants.
Flossie Weill, Harry Weill (argued), Weill, Ellis, Weems & Copeland, Chattanooga, Tenn., for plaintiffs-appellees.
Before EDWARDS, Chief Judge, ENGEL, Circuit Judge, and BERTELSMAN, District Judge.
Hon. William O. Bertelsman, Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.
BERTELSMAN, District Judge.
This is a diversity wrongful death action arising out of an automobile-truck accident on Interstate Highway 75 in the State of Tennessee.
The following facts were stipulated:
On September 28, 1978, defendant John A. Walkup, an employee of defendant N.A.B. Trucking Co., Inc. (N.A.B.), was driving a loaded tractor-trailer from Columbus, Ohio, to Jacksonville, Florida. Near Knoxville, Tennessee, Walkup called an N.A.B. dispatcher to report that his tractor was malfunctioning. The dispatcher instructed Walkup to drive the rig to Warner Robins, Georgia, if possible. Walkup tried to comply with this request, but in the early evening of September 28, the tractor completely broke down on 1-75, some 85 miles south of Knoxville.
Walkup reported his predicament to the N.A.B. dispatcher. He was told to get a motel room and wait for a replacement tractor. Walkup declined to take a motel room and instead informed the dispatcher that he would wait for the new tractor in a nearby motel lobby.
An N.A.B. wrecker operator arrived with the replacement tractor on the early morning of September 29. After swapping the tractors, the two N.A.B. employees decided to have breakfast together. To accomplish this, Walkup did something very foolish; indeed, it turned out to be fatal. Apparently, the two men had decided to go to a restaurant at an exit just north of the breakdown location. Instead of going south to the next exit on 1-75 and returning north, Walkup tried to turn his rig around on the highway so that he could proceed north on the southbound lanes of 1-75 and exit at a nearby entrance ramp. Unfortunately, Walkup’s tractor-trailer got stuck midway through the turn with the result that the tractor-trailer blocked both southbound lanes of 1-75 and the left berm. To make matters worse, Walkup was unable to set flares to warn approaching traffic because the flare compartment in the new tractor’s cab was jammed shut. Shortly thereafter, the plaintiffs decedent, Henry H. Sakamoto, slammed into the disabled tractor-trailer in the fatal accident that was the basis for this lawsuit.
In addition to the preceding facts, it is important to note that there was also evidence to the effect that Walkup had been without sleep for more than 40 hours at the time of the accident and was a habitual user of amphetamines, that N.A.B. knew or should have known of these facts, and that insufficient warning lights were operating on the truck at the time of the accident.
The trial of this case was bifurcated, liability being tried first and the damages issues being tried immediately thereafter to the same jury. The defendants conceded during the first phase of the trial that they were guilty of ordinary negligence. The issues tried were whether there was any gross negligence, whether punitive damages should be assessed against one or both defendants and, if so, in what amount, and how much compensatory damages should be awarded.
After the liability phase of the case, the jury found that both Walkup and N.A.B. had been guilty of gross negligence, and that both defendants were liable to the plaintiffs. In the damages phase, the jury awarded the plaintiffs $300,000 in compensatory damages and $1 million in punitive damages. The defendants were found jointly and severally liable for the compensatory damages, but N.A.B. was assessed $900,000 of the punitive damages while Walkup was assessed only $100,000. Following remittitur, a final judgment was entered in the amount of $300,000 compensatory damages jointly against both defendants, $300,000 in punitive damages against N.A.B., and $100,000 in punitive damages against Walkup.
On appeal, N.A.B. argues that the judgment below should be reversed for four reasons: (1) because there was no evidence of gross negligence on N.A.B.’s part, an award of punitive damages against N.A.B. was unwarranted; (2) it was error for the trial court to permit the jury to render separate awards of punitive damages against the defendants; (3) the punitive damages award was excessive; and (4) the trial court erred to the prejudice of N.A.B. when it added another interrogatory to the special verdict form after the closing arguments.
Having thoroughly reviewed the record and the transcript herein, the court is of the opinion that there was, under Tennessee law, sufficient evidence of gross negligence on the part of Walkup and N.A.B. to justify the submission of the punitive damages issues to the jury. Also, the court cannot say that the amount of punitive damages awarded was excessive. These matters were vigorously argued to the trial judge both during and after trial, and this court is constrained to respect his rulings on these issues of state law.
A much more difficult question is presented, however, by the procedural history of this case, which requires the court to apply F.R.Civ.P. 49(a), 49(b) and 51 in a somewhat unusual context. To clarify the issues presented, it is necessary to review the developments in the case as the trial proceeded.
Prior to closing arguments, the trial court showed counsel a verdict form that contained three special interrogatories. None of the interrogatories dealt with the independent gross negligence of N.A.B. Both counsel stated that the verdict form was acceptable.
The plaintiffs’ argument was divided. In the initial portion of his closing argument, plaintiffs’ attorney forcefully argued the independent negligence of N.A.B. No objection was made by counsel for the defendant to this argument.
During his closing argument, defendants’ attorney did not address the issue of the separate negligence of the trucking company but argued that the driver was not guilty of gross negligence. In the final segment of his closing argument, plaintiffs’ attorney only briefly referred to the independent negligence of the trucking company and spent most of his time on the issue of the alleged contributory negligence of plaintiffs’ decedent.
At the conclusion of the closing arguments, the trial judge, following his customary practice, gave an extensive oral instruction, during which he summarized the contentions of the parties.
After relating this somewhat lengthy prologue, then, we come to the crux of this appeal. During the course of his oral instructions, without having previously advised counsel of his intentions, the trial judge stated as follows:
“Now, in this case, turning more directly .to the issues that will be for your decision, I read those issues to you before the argument of counsel.
“Since having read them to you, I have decided that it would be appropriate to add one additional issue in the case for your consideration, and therefore, I think I will just reread the verdict form to you at the present time. And I will point out to you the additional issue that I have added since the inception of the argument of the case. (Tr. 507).
“Then I have added, since reading this verdict form to you, a second issue that relates to the defendant N.A.B. Trucking Company, and it reads as follows: ‘Apart from the acts or omissions on the part of its driver, John A. Walkup, we, the jury, find that the defendant, NA.B. Trucking Company, Incorporated, blank, either was or was not guilty of gross negligence that proximately caused or proximately contributed to cause the accident that occurred upon September 29, 1978.’
“Now, that issue is based upon the plaintiff’s contention that N.A.B. Trucking Company was guilty of gross negligence not only by reason of the gross negligence as it contends on the part of the driver, Walkup, but also that even apart from the acts of omissions of the driver, that N.A.B. was guilty of gross negligence. And that’s the basis of that issue.” (Tr. 508). (Emphasis added).
Defendants’ counsel seasonably objected to the addition of this interrogatory on the ground that “for the very first time, this verdict form then presents an issue in the lawsuit of the independent gross negligence of” the trucking company. (Tr. 530).
The liability phase of the case was then presented to the jury, which found, so far as pertinent here, that the truck driver had been guilty of gross negligence and, in answer to the added interrogatory, that the trucking company was guilty of independent gross negligence. The general verdict was in favor of the plaintiffs against both the driver and the trucking company.
The damages phase of the case was then tried.
In the course of his instructions at the conclusion of that phase of the case, the trial court reminded the jury that it had “heretofore found in this lawsuit that the defendants were guilty of proximate gross negligence with reference to the accident that resulted in Mr. Sakamoto’s death.” (Tr. 826). It then submitted separate interrogatories on the amounts of punitive damages to be assessed against the driver and the trucking company.
Following the remittitur, a final judgment was ultimately entered in the amount of $300,000 in compensatory damages against the trucking company and the driver jointly, and $300,000 in punitive damages against the trucking company and $100,000 in punitive damages against the driver.
By reason of these events, the appellant trucking company emphatically urges upon this court that a violation of F.R.Civ.P. 51 has occurred by which it has been substantially prejudiced, because it was unfairly surprised by the giving of the additional interrogatory after closing argument.
A review of the text of Rule 51 reveals that its application to the situation herein described is not immediately obvious.
Rule 51.
INSTRUCTIONS TO JURY: OBJECTION
“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the request prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis added).
Plaintiffs-appellees’ counsel had requested an interrogatory on N.A.B.’s independent gross negligence. Because no interrogatory on N.A.B.’s independent gross negligence was included in the original verdict form, N.A.B. maintains that it was led to believe that the request had been refused. N.A.B. contends that it was prejudiced by the addition of the interrogatory after summation because it was lulled into not mentioning this issue to the jury, believing that it was no longer an open question. Moreover, N.A.B. argues that it was error for the trial court to submit an interrogatory to the jury which its counsel had no opportunity to see or comment upon prior to closing arguments.
Plaintiffs-appellees respond that the trial court was using special interrogatories accompanying a general verdict, pursuant to F.R.Civ.P. 49(b), and therefore it was not necessary that they be shown to counsel prior to argument. They also point out that their contentions with regard to the independent negligence of the trucking company were clear throughout the proceedings up to and including the motion for a directed verdict and the initial phase of their closing argument.
To resolve this issue, it is necessary to consider not only Rule 51, supra, but also F.R.Civ.P. 49, the text of which is set out in the margin.
Our analysis is not aided by the fact that there is some confusion in the authorities on the interplay of Rules 49(a), 49(b) and 51. Although there has been some misleading language in some of the opinions, we believe the cases can be harmonized.
In addressing this task, it is essential to distinguish between a Rule 49(a) special verdict and special interrogatories submitted under Rule 49(b). A Rule 49(a) special verdict is designed to cover all of the material factual issues in the cases. Its purpose is to ascertain how the jury has resolved these issues. The court is to enter a judgment on the basis of the jury’s answer to the special verdict interrogatories without using a general verdict. Not surprisingly, therefore, it has been held that Rule 51 requires that counsel be advised at least of the court’s intent to use Rule 49(a) interrogatories, so that counsel may have an opportunity pursuant to Rule 51 to make special requests for interrogatories and supplemental instructions.
As one court has pointed out, this practice “is required to enable counsel intelligently to prepare requested charges, determine all of the issues which must be submitted, and then to plan an effective argument whose objective is to translate persuasion into specific decisive action by the jury.”
Where the case is complex or the issues have developed late in trial, it has also been held that it may be an abuse of discretion for the trial court not to disclose in advance the exact form of the Rule 49(a) interrogatories it proposes to use. One court has even held that it is mandatory to show all proposed Rule 49(a) special interrogatories to counsel in advance of final argument.
There being no authority with regard to this issue in this circuit, we hereby adopt the following view with regard to the interrelationship of Rule 49(a) and Rule 51. We consider it the better and safer practice in all cases where Rule 49(a) is to be employed for the trial court to submit the actual special interrogatories and supplementary instructions to counsel in writing in advance of argument. But we hold that the disclosure prior to final argument of at least the substance of the Rule 49(a) special verdict interrogatories and supplemental instructions is mandatory.
Further, we note that it may be an abuse of discretion to fail to show the Rule 49(a) interrogatories to counsel in advance of argument where, because of exceptional circumstances, such as the complexity of the case, unfairness would otherwise result.
These views are in accord with the generally accepted interpretation of Rule 51 that in the federal courts counsel have no right to be apprised of the exact language of any instruction, even where special requests are made. Indeed, in federal practice, the court may instruct orally and the form of the instructions is within its discretion, so long as their substance is correct, and the parties have been substantially advised of the rulings on counsel’s requests. Although it is obvious that Rule 49(a) interrogatories must be reduced to writing, we do not feel justified, considering traditional practice under Rule 51, in following the Third Circuit in holding that submitting the interrogatories to counsel in advance of argument is always mandatory.
We hasten to distinguish this court’s decision in Brown v. Tennessee Gas Pipeline Co. As the text of that case clearly indicates, this was a Rule 49(b) case, where, as provided in that sub-rule, the special interrogatories were used to test a general verdict. This court correctly pointed out that, where Rule 49(b) is employed, there is no necessity, and it may even be undesirable, to submit the interrogatories to counsel in advance of argument, because it would defeat the testing function of Rule 49(b) interrogatories if counsel were permitted to suggest to the jury in argument how they should be answered.
Our difficulties in dealing with the sometimes ambiguous precedents on this subject are compounded by the equivocal use of the special interrogatories in this case. Analysis of the record reveals that the trial court, although submitting the special interrogatories in conjunction with a general verdict, did not use them for the purpose of testing that verdict, but for determining the jury’s resolution of the issue of independent gross negligence of the trucking company. The answers to the special interrogatory submitted in the first phase of the case were used as the basis for submitting to the jury special interrogatories in the damages phase, which permitted them to return punitive damages verdicts against the two defendants in separate amounts. The jury was instructed in the damages phase that independent negligence had already been established by its responses to the interrogatories in the liability phase. The general verdict presented to the jury in the liability phase was in effect superfluous. Therefore, the special interrogatories submitted in the liability phase must be regarded as submitted under Rule 49(a).
As we have said, we are of the view that Rule 51, when read in conjunction with Rule 49(a), requires that counsel be advised of the intent of the court to respond to counsel’s requests for instructions by using special interrogatories, and of at least the substance of the interrogatories. Here, however, the context of the proceedings indicates that the failure to give the special interrogatory on the issue of the independent negligence of the trucking company was mere inadvertence by the court. This omission could and undoubtedly would have been cured, if called to the court’s attention by an objection to counsel for plaintiffs’ raising that issue in the first portion of his final argument.
In this case, no prejudice resulted from the failure of the trial court to disclose prior to summation the interrogatory concerning the gross negligence of N.A.B. Counsel for N.A.B. was well aware that the independent gross negligence of N.A.B. was at issue. As the plaintiffs-appellees note, the issue of the independent gross negligence of N.A.B. was raised in the complaint, in a letter to the magistrate, in the final pretrial order, in their requests for jury instructions, and in the testimony of witnesses during the trial. Moreover,'in response to N.A.B.’s motion for a directed verdict on the issue of gross negligence, counsel for plaintiffs-appellees emphatically argued that there was sufficient evidence of independent gross negligence on behalf of N.A.B. From the context, it is evident that the motion for a directed verdict was denied in part because the trial judge felt that evidence of independent gross negligence existed. Thus, at the time that the original verdict form was given to the parties, there can be no doubt that the independent gross negligence of N.A.B. was at issue and everyone was aware of it.
Had counsel for N.A.B. understood the tender of the original verdict and interrogatories as being a ruling under Rule 51 that plaintiffs’ request to instruct on the independent negligence had been denied by the court, counsel for N.A.B. would surely have made an objection during the closing argument when this issue was raised.
In light of the forceful arguments made on this issue by his adversary, counsel for the trucking company can hardly claim to have been surprised by the special interrogatory. Therefore, this court holds that there was no prejudice in the court’s adding the additional interrogatory to cover a matter that everyone knew was crucial in the case but had been inadvertently omitted. This conclusion is confirmed by the consideration that, if counsel had truly felt that he was prejudiced, he could have requested further argument on the additional interrogatory to the jury, and the failure of experienced and able counsel for the defendant to do so, again indicates to this court that there was no surprise on his part occasioned by the additional interrogatory, and therefore no prejudice. Any error on the part of the trial court was harmless and reversal is not appropriate.
Therefore, the judgment of the trial court must be, and is, hereby AFFIRMED.
After the oral argument herein the case against Walkup was settled.
. The present definition for conduct for which punitive damages would be allowed under Tennessee law may be found in Richardson v. Gi- balski, 625 S.W.2d 715 (Tenn.App.1979), as follows:
“As has been pointed out by our appellate courts so many times, it takes something far greater than lack of ordinary care to sustain an award for punitive damages.... They are awarded in cases involving fraud, malice, gross negligence or oppression ... or where a wrongful act is done with a bad motive or so recklessly as to imply a disregard of social obligation, ... or where there is such willful misconduct or entire want of care as to raise a presumption of conscious indifference to consequences ... or to amount to positive misconduct.”
. Transamerica Insurance Group v. Beem, 652 F.2d 663, 665 n. 3 (6th Cir.1981), and cases there cited.
. The verdict form read:
VERDICT FORM
Special Issues
“(1) We, the jury, find that the defendant, JOHN A. WALKUP, (was — was not) guilty of gross negligence that proximately caused or proximately contributed to cause the accident that occurred upon September 29, 1978.
“(2) We the jury, find that the plaintiffs decedent, Henry H. Sakamoto, (was — was not) guilty of negligence which proximately contributed to cause the accident that occurred upon September 29, 1978.
“(3) [If your answer to Issue No. (2) is that the plaintiffs decedent, Henry H. Sakamoto,
“was not” guilty of proximate contributory negligence, then answer Issue No. (3) ] We, the jury, find that the plaintiffs decedent, Henry H. Sakamoto, (was — was not) guilty of remote contributory negligence with regard to the accident that occurred upon September 29, 1978.
General Verdict
“(4) We, the jury, find that the plaintiff, YASUKO N. SAKAMOTO, Administratrix of the Estate of Henry H. Sakamoto, (is — is not) entitled to recover of the defendants, N.A.B. TRUCKING CO., INC., and JOHN A. WALK-UP.”
Jury Foreperson
.Plaintiff’s counsel stated in part:
“Now, ladies and gentlemen, in addition to that, on top of that, the defendant N.A.B. Trucking Company is liable for gross negligence in addition to the negligence that they are liable for by their employee, John Walk-up, from the illegal, willful and wanton conduct in the following respects: One, despite the obvious danger to other motorists on the highway, N.A.B. Trucking Company’s dispatcher directed John Walkup, who reported the mechanical problems up above Knoxville, to proceed from Knoxville to Waycross, Georgia, without having the tractor inspected or repaired. They didn’t care about who got killed or who got injured, their interest was getting that load of dog food down to Jacksonville, Florida.
“Now, that is wanton conduct.” (Tr. 473).
. Rule 49.
SPECIAL VERDICTS AND INTERROGATORIES
“(a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
“(b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”
. Harville v. Anchor-Wate Co., 663 F.2d 598, 602 (5th Cir.1981); National Bank of Commerce v. Royal Exchange Assurance of America, Inc., 455 F.2d 892, 898 (6th Cir.1972); Wright & Miller, Federal Practice & Procedure, § 2506 at 499 (1971).
. Wright & Miller, supra note 7, § 2510 at 519-520.
. Clegg v. Hardware Mutual Casualty Co., 264 F.2d 152, 157 (5th Cir.1959).
. Id.
. Cutlass Productions, Inc. v. Bregman, 682 F.2d 323, 330 (2d Cir.1982).
. Smith v. Danyo, 585 F.2d 83, 88 (3d Cir.1978).
. 5A Moore's Federal Practice ¶ 51.06 (1982).
. 623 F.2d 450 (6th Cir.1980).
. Some confusion has arisen by reason of the fact that the case of Cramer v. Hoffman, 390 F.2d 19 (2d Cir.1968), which stated it was discretionary with the court to show interrogatories to counsel in advance of argument, has been discussed by some courts as a Rule 49(a) case when a careful reading of the opinion shows it was a Rule 49(b) case. Therefore, we read that case as supporting our discussion herein with regard to both Rules 49(a) and 49(b).
. F.R.Civ.P. 61; Clegg v. Hardware Mutual Insurance Co., 264 F.2d 152 (5th Cir.1959); Smith v. Danyo, 585 F.2d 83 (3d Cir.1978).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
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sc_lcdispositiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
FOLEY v. CONNELIE, SUPERINTENDENT OF NEW YORK STATE POLICE, et al.
No. 76-839.
Argued November 8, 1977
Decided March 22, 1978
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 300. Blackmun, J., filed an opinion concurring in the result, post, p. 300. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 302. Stevens, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 307.
Jonathan A. Weiss argued the cause for appellant. With him on the briefs was David S. Preminger.
Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Vilma S. Martinez and Morris J. Baller filed a brief for the Mexican American Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U. S. 944 (1977).
The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N. Y. Exec. Law § 215 (3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides:
“No person shall be appointed to the New York state police force unless he shall be a citizen of the United States.”
Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State’s exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F. Supp. 889 (1976). We affirm.
I
The essential facts in this case are uncontroverted. New York Exec. Law § 215 ,(3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment.
A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed.
Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: “State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York.” 419 F. Supp., at 896.
II
Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause.
The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country, which is not surprising for we have often been described as “a nation of immigrants.” Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U. S. 634, 648 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with “heightened judicial solicitude,” Graham v. Richardson, 403 U. S. 365, 372 (1971), a treatment deemed necessary since aliens — pending their eligibility for citizenship — have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938).
Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977); eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, 426 U. S. 572 (1976); In re Griffiths, 413 U. S. 717 (1973). These exclusions struck at the noncitizens’ ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, at 377-378; Barrett, Judicial Supervision of Legislative Classifications — A More Modest Role For Equal Protection?, 1976 B. Y. U. L. Rev. 89, 101.
It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of "strict scrutiny,” because to do so would “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.” Mauclet, supra, at 14 (Burger, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State’s historical power to exclude aliens from participation in its democratic political institutions,” Dougall, supra, at 648, as part of the sovereign’s obligation “ 'to preserve the basic conception of a political community.’ ” 413 U. S., at 647.
The practical consequence of this theory is that ''our scrutiny will not be so demanding where we deal with matters firmly within a State’s constitutional prerogatives.” Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U. S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff’d, 426 U. S. 913 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those ''important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.
The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.
Ill
A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers. The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U. S. 1 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U. S. 301 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U. S. 106 (1977).
An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper — for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations — can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations — for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.
Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of “the common occupations of the community” that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U. S. 33, 41 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, 386 U. S. 547, 555-557 (1967); cf. Scheuer v. Rhodes, 416 U. S. 232, 245-246 (1974).
In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of non-citizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions. Police officers very clearly fall within the category of “important nonelective . . . officers who participate directly in the . . . execution ... of broad public policy.” Dougall, 413 U. S., at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.
Accordingly, the judgment of the District Court is
Affirmed.
We recognize that New York’s statute may effectively prevent some class members from .ever becoming troopers since state law limits eligibility for these positions to those between the age of 21 and 29 years. N. Y. Exec. Law §215 (3) (McKinney 1972).
One indication of this attitude is Congress’ determination to malee it relatively easy for immigrants to become naturalized citizens. See 8 U. S. C. § 1427 (1976 ed.).
The alien’s status is, at least for a time, beyond his control since Congress has imposed durational residency requirements for the attainment of citizenship. Federal law generally requires an alien to lawfully reside in this country for five years as a prerequisite to applying for naturalization. 8 U. S. C. § 1427 (a) (1976 ed.).
In Mauclet, for example, New York State policy reflected a legislative judgment that higher education was “ ‘no longer ... a luxury; it is a necessity for strength, fulfillment and survival.’ ” 432 U. S., at 8 n. 9.
This is not to say, of course, that a State may accomplish this end with a citizenship restriction that "sweeps indiscriminately,” Dougall, 413 U. S., at 643, without regard to the differences in the positions involved.
See ABA Project on Standards for Criminal Justice, The Urban Police Function 119 (App. Draft 1973); National Advisory Commission on Criminal Justice Standards and Goals, Police 22-23 (1973); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 10 (1967).
After the event, some abuses of power may be subject to remedies by one showing injury. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). And conclusive evidence of criminal conduct may be kept from the knowledge of a jury because of police error or misconduct.
Twenty-four States besides New York specifically require United States citizenship as a prerequisite for becoming a member of a statewide law enforcement agency: see Ark. Stat. Ann. § 42-406 (1964); Cal. Govt. Code Ann. § 1031 (West Supp. 1978); Fla. Stat. Ann. § 943.13 (2) (West Supp. 1976); Ga. Code § 92A-214 (Supp. 1977); 111. Rev. Stat., ch. 121, §307.9 (1975); Ind. Rules & Regs., Tit. 10, Art. 1, ch. 1, §4-7 (1976); Iowa Code § 80.15 (1977); Kan. Stat. Ann. § 74r-2113 (c) (Supp. 1976); Ky. Rev. Stat. § 16.040 (2)(c) (1971); Mich. Comp. Laws §28.4 (1967); Miss. Code Ann. § 45-3-9 (Supp. 1977); Mo. Rev. Stat. § 43.060 (1969); Mont. Rev. Codes Ann. § 31-105 (3) (a) (v) (Supp. 1977); Nev. Rev. Stat. §281.060 (1) (1975); N. H. Rev. Stat. Ann. § 106-R:20 (Supp. 1975); N. J. Stat. Ann. §53:1-9 (West Supp. 1977); N. M. Stat. Ann. § 39-2-6 (1972); N. D. Cent. Code § 39-03-04 (4) (Supp. 1977); Ore. Rev. Stat. § 181.260 (1) (a) (1977); Pa. Stat. Ann., Tit. 71, § 1193 (Purdon 1962); R. I. Gen. Laws § 42-28-10 (1970); S. D. Comp. Laws Ann. §3-7-9 and §3-1-4 (1974); Tex. Rev. Civ. Stat. Am., Art. 4413 (9) (2) (Vernon 1976); Utah Code Ann. §27-11-11 (1976). Oklahoma requires its officers to be citizens of the State. See Okla. Stat., Tit. 47, § 2-105 (a) (Supp. 1976). Nine other States require American citizenship as part of a general requirement applicable to all types of state officers or employees: see Ala. Code, Tit. 36, § 2-1 (a) (1) (1977); Ariz. Rev. Stat. Ann. § 38-201 (1974); Haw. Rev. Stat. § 78-1 (1976); Idaho Code § 59-101 (1976) and Idaho Const., Art. 6, § 2; Me. Rev. Stat. Ann., Tit. 5, § 556 (Supp. 1977); Mass. Gen. Laws Ann., ch. 31, § 12 (West Supp. 1977); Ohio Rev. Code Ann. § 124.22 (1978); Tenn. Code Ann. §8-1801 (Supp. 1977); Vt. Stat. Ann., Tit. 3, § 262 (1972); W. Va. Const., Art. 4, § 4.
Police powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights. To taire only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times. This, inter alia, affords a rational basis for States to require that those entrusted with the execution of the laws be individuals who, even if not native Americans, have indicated acceptance and allegiance, to our Constitution by becoming citizens.
Cf. McCarthy v. Philadelphia Civil Service Comm’n, 424 U. S. 645 (1976); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N. W. 2d 97 (1971), dismissed for want of substantial federal question, 405 U. S. 950 (1972).
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_appel1_2_3
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
INVESTMENT COMPANY INSTITUTE and Securities Industry Association, Petitioners, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Respondents. INVESTMENT COMPANY INSTITUTE, et al., Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al.
Nos. 84-1616, 85-5769.
United States Court of Appeals, District of Columbia Circuit.
Argued April 18, 1986.
Decided April 7, 1987.
Harvey L. Pitt, Washington, D.C., with whom Henry A. Hubschman and David M. Miles, Washington, D.C., were on the brief, for petitioners in No. 84-1616 and appellants in No. 85-5769.
Theodore C. Hirt, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGen-ova, U.S. Atty., John C. Murphy, Jr., Gen. Counsel, Federal Deposit Ins. Corp., Ronald Glancz, Asst. Gen., Counsel, Federal Deposit Ins. Corp., and Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D.C., were on the brief, for respondents in No. 84-1616 and appellees in No. 85-5769.
Michael S. Heifer, Washington, D.C., was on the brief for amicus curiae Dealer Bank Ass’n, urging affirmance.
John T. Gill, III, Johanna M. Sabol, and Michael F. Crotty, Washington, D.C., were on the brief for amicus curiae American Bankers Ass’n, urging affirmance.
Before STARR and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion for the court per curiam.
PER CURIAM:
Petitioners/appellants Investment Company Institute (ICI) and Securities Industry Association (SIA) challenge regulations of the Federal Deposit Insurance Corporation (FDIC) governing the activities of insured banks that are not members of the Federal Reserve System. Petitioners principally argue that insofar as FDIC regulations allow nonmember insured banks to have subsidiary or affiliate relationships with firms engaged in securities work, those regulations violate the command of § 21 of the Banking Act of 1933 (Glass-Steagall Act), 12 U.S.C. § 378 (1982), that securities firms shall not engage in receiving deposits “to any extent whatever.” We cannot agree. The clear language of the Glass-Steagall Act demonstrates that Congress intended to differentiate between the activities of banks and the activities of banks’ subsidiaries and affiliates. As we see no provision in the Act, including § 21, that prohibits subsidiaries or affiliates of nonmember insured banks from engaging in securities work, and because we find unmeritorious petitioners’ arguments under §§ 2[6] and 2[8] of the Federal Deposit Insurance Act, 12 U.S.C. §§ 1816, 1818 (1982), we affirm the District Court’s grant of summary judgment for the defendants, see ICI v. FDIC, 606 F.Supp. 683 (D.D.C.1985), and dismiss the petition for review of the regulation.
I. Background
Federal regulation effectively divides the United States commercial banking community into three major categories. Banks that choose to become members of the Federal Reserve System fall under the jurisdiction of the Board of Governors of the Federal Reserve System. See 12 U.S.C. §§ 221, 248 (1982). National banks come within the jurisdiction of the Comptroller of the Currency. See id. Finally, insured state banks that are not members of the Federal Reserve System operate under the watchful eye of the FDIC. See id. §§ 1811, 1815. Although the FDIC insures the deposits of all three categories, id. § 1811, it regulates directly only the third group. See generally id. § 1815. The Glass-Steagall Act seeks to draw a sharp line between the activities of these three categories of commercial banks and the activities of investment banks and other securities firms. Id. §§ 24, 78, 377, 378; Board of Governors v. Investment Company Institute, 450 U.S. 46, 63, 101 S.Ct. 973, 985, 67 L.Ed.2d 36 (1981) (“Board of Governors ”).
This case explores the periphery of the separation of the banking and securities industries mandated by the Glass-Steagall Act. As the condition and character of the two industries have shifted over the past fifty years, the separation policy has shifted as well. Its changing shape has promoted particularly significant and protracted litigation in recent years, see, e.g., Securities Industry Ass’n v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (“Becker ”) (commercial paper is a security under the Glass-Steagall Act); Securities Industry Ass’n v. Board of Governors, 468 U.S. 207, 104 S.Ct. 3003, 82 L.Ed.2d 158 (1984) (“Schwab ”) (Board may allow bank holding company to acquire affiliate engaged in securities brokerage); Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052, 1058 (D.C.Cir. 1986) (Board may allow banks to sell third-party commercial paper), and has prompted this court to call upon Congress to clarify its precise contours. American Bankers Ass’n v. SEC, 804 F.2d 739, 755-56 (D.C. Cir.1986) (SEC has no authority to regulate securities activities of banks).
The specific issue presented here is the extent to which Congress intended to bar subsidiaries and affiliates of insured nonmember banks from engaging in the securities business. In September 1982 the FDIC published in the Federal Register a policy statement that found the Glass-Stea-gall Act “does not prohibit an insured nonmember bank from establishing an affiliate relationship with or organizing or acquiring a subsidiary corporation that engages in the business of issuing, underwriting, selling, or distributing stocks, bonds, debentures, notes, or other securities.” 49 Fed. Reg. 46709 (Nov. 28, 1984). See 47 Fed. Reg. 38984 (Sept. 3, 1982). The FDIC did note, however, that the securities activities of such affiliates or subsidiaries might raise questions of “unsafe or unsound banking practices” and practices not “consistent with the purposes of” deposit insurance under §§ 2[6] and 2[8] of the Federal Insurance Act (FDIA), 12 U.S.C. §§ 1816, 1818 (1982). Id.
In November 1984, after notice and comment proceedings, the FDIC adopted a final rule regulating the securities activities of affiliates and subsidiaries of insured nonmember banks under §§ 2[6] and 2[8] of the FDIA. 49 Fed.Reg. 46709 (Nov. 28, 1984), regulations codified at 12 C.F.R. § 337.4 (1986). Although the rule does not prohibit such securities activities outright, it does restrict that activity in a number of ways. Banks may only maintain “bona fide” subsidiaries that engage in securities work. The rule defines “bona fide subsidiary” so as to limit the extent to which banks and their securities affiliates and subsidiaries may share company names or logos, as well as places of business. 12 C.F.R. § 337.4(a)(2)(ii), (iii); 49 Fed.Reg. at 46710. The definition also requires banks and subsidiaries to maintain separate accounting records and to observe separate corporate formalities. 12 C.F.R. § 337.-4(a)(2)(iv), (v). The two entities cannot share officers, and must conduct business pursuant to independent policies and procedures, including the maintenance of separate employees and payrolls. Id. § 337.-4(a)(2)(vi), (vii), (viii); 49 Fed.Reg. at 46711-12. Finally, and perhaps most importantly, the rule requires a subsidiary to be “adequately capitalized.” 12 C.F.R. § 337.-4(a)(2)(i).
Petitioners Investment Company Institute and Securities Industry Association, representing mutual fund companies and investment bankers, simultaneously filed a petition for review in this court and an action to enjoin the regulation in the United States District Court for the District of Columbia. They argue that the rule violates § 21 of the Glass-Steagall Act, 12 U.S.C. § 378 (1982), and §§ 2[6] and 2[8] of the Federal Deposit Insurance Act. 12 U.S.C. §§ 1816, 1818 (1982). We stayed our proceedings until the District Court had ruled on the matter. Order of February 19, 1985. District Judge Gesell, on cross-motions for summary judgment, upheld the FDIC’s regulations and dismissed the ICI and SIA action. ICI v. FDIC, 606 F.Supp. 683 (D.D.C.1985). We consider now both the appeal from that judgment (No. 85-5769), and the original petition for review of the FDIC rule (No. 84-1616).
II. Petitioners’ Standing Under the
Glass-Steagall Act and the Federal Deposit Insurance Act
Before we address the merits of petitioners’ challenge, we must examine the standing of securities industry plaintiffs to challenge the FDIC rule at issue. At the outset, we note that petitioners have shown sufficient “injury in fact” from these regulations for standing purposes. The FDIC will deal petitioners competitive injury by allowing insured nonmember banks to enter the securities field indirectly through subsidiaries and affiliates. See, e.g., Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1967); Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed.2d 667 (1924); see also ICI v. FDIC, 606 F.Supp. at 684 (FDIC regulation “plainly threatens” economic injury to securities firms).
But the standing inquiry, of course, does not end with “injury in fact.” Competitive injury alone does not confer standing. Hardin, 390 U.S. at 5-6, 88 S.Ct. at 654-55. Once we find such injury, we must turn to the “prudential” or “zone of interests” standing test enunciated by the Supreme Court in Association of Data Processing Services v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). If the interest the petitioner seeks to protect is “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question,” petitioner has standing.
The Supreme Court recently clarified the meaning of the “zone of interests” standing test in its opinion in Clarke v. Securities Industry Ass’n, — U.S. -, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). In that case securities industry plaintiffs challenged a decision of the Comptroller of the Currency that national bank discount brokering services are not “branch services” for purposes of the McFadden Act. 107 S.Ct. at 754. The McFadden Act places stringent limits on interstate branch banking activities, see 12 U.S.C. §§ 36(c) & (f), 81 (1982), and plaintiffs feared that the Comptroller’s relatively narrow interpretation of the range of services the Act covers would expose the securities industry to competitive injury. Clarke, 107 S.Ct. at 754.
The Court rejected the Comptroller’s argument that SIA lacked standing because Congress had not intended the McFadden Act to protect the competitive position of the securities industry. Id. at 759. The zone of interests test, stated the Court, “denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. at 757. The Court found that the security industry’s competitive interest bore a “plausible relationship” to the interests Congress sought to protect, id. at 759, and that in any event there were “no indications * * * that make ‘fairly discernible’ a congressional intent to preclude review * * Id., quoting Block v. Community Nutrition Institute, 467 U.S. 340, 347, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984). Notably, the Court overturned this court’s decision in Control Data Corp. v. Baldrige, 655 F.2d 283 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), and instructed the lower courts to consider “all indicators helpful in discerning” the interests and parties Congress intended to protect. Clarke, 107 S.Ct. at 757-58 & n. 15.
With these guiding standards firmly in mind, we turn to petitioners’ standing in this suit under § 21 of the Glass-Steagall Act and §§ 2[6] and 2[8] of the Federal Deposit Insurance Act.
A. The Glass-Steagall Act
In Investment Company Institute v. Camp, 401 U.S. 617, 620-21, 91 S.Ct. 1091, 1093-94, 28 L.Ed.2d 367 (1971), the Supreme Court held that securities industry groups had standing to challenge regulations promulgated under the Glass-Steagall Act that allowed national banks to enter the securities field. The Court concluded that in §§ 16 and 21 of the Act Congress “arguably” had legislated against the competition ICI sought to prevent. 401 U.S. at 620, 91 S.Ct. at 1093. We find that Camp controls our Glass-Steagall standing analysis in the present case.
The FDIC attempts to distinguish Camp by pointing out that ICI’s challenge here rests on § 21 alone. Section 21 is a criminal provision, notes FDIC, and thus seeks to protect the public interest, not the interests of securities firms. Implicitly, FDIC
argues that the Camp Court actually rested its standing determination on § 16, not § 21.
Although the FDIC’s point on the criminal focus of § 21 is well taken, it does not adequately demonstrate that the present case is different from the situation in Camp. First of all, nothing in the Camp decision indicates that the Supreme Court meant to distinguish between § 16 and § 21 for standing purposes. 401 U.S. at 620, 91 S.Ct. at 1093. In fact, the Court’s short standing discussion speaks of the two provisions in the same breath, and fails to draw any distinction whatever between them. Id. Second, even though § 21 does contain a criminal penalty element, FDIC’s authority to interpret that section stems from purely civil enforcement powers. 12 U.S.C. § 1818 (1982). Section 21 has repeatedly and consistently received “civil” regulatory interpretation. See, e.g., Becker, 468 U.S. at 139, 104 S.Ct. at 2981; Board of Governors, 450 U.S. at 62, 101 S.Ct. at 984. After all, the Camp case itself was purely civil in nature. 401 U.S. at 617-18, 639, 91 S.Ct. at 1091-92, 1103. In fact, petitioners assert, without contradiction by respondents, that no criminal action has ever been brought under the section. Supplemental Brief for Appellants/Petitioners at 11 n. **.
Moreover, it is well established that courts applying the prudential standing test may look for the requisite protective intent on the part of Congress not only in the specific statutory provision at issue but also in other provisions of a statute. See Clarke, 107 S.Ct. at 758; Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 141 (D.C.Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); see also Autolog Corp. v. Regan, 731 F.2d 25, 30 n. 3 (D.C.Cir.1984). As the Supreme Court has specifically indicated that § 16 and § 21 seek to “draw the same line,” Becker, 468 U.S. at 149, 104 S.Ct. at 2985, we appropriately look to § 16 to help inform our standing decisions under § 21. Clarke, 107 S.Ct. at 757-58. In so doing, our analysis falls squarely within the Supreme Court’s Camp holding that ICI has standing under § 16 and § 21 to challenge regulations allowing banks to enter the securities field. As a consequence, Camp controls. Petitioners’ standing under § 21 of the Glass-Steagall Act to challenge these regulations is clear.
B. The Federal Deposit Insurance Act
Sections 2[6] and 2[8] of the FDIA speak in broad terms, forbidding bank practices that are not “consistent with the purposes” of federal deposit insurance or that are “unsafe and unsound.” 12 U.S.C. §§ 1816, 1818 (1982). Petitioners argue that it is clear from the breadth of this language that Congress has legislated against the very activities that petitioners allege have caused them injury. See Clarke, 107 S.Ct. at 756, 759 (quoting Investment Company Institute v. Camp, 401 U.S. at 620, 91 S.Ct. at 1093).
Congress enacted the FDIA as part of the Banking Act of 1933, 48 Stat. 162, for purposes of providing for “the safer use of the assets of banks, to regulate interbank control, to prevent the undue diversion of funds into speculative operations, and for other purposes * * H.R.Rep. No. 150, 73d Cong., 1st Sess. 1 (May 19, 1933). Although Congress did not expressly indicate a desire to protect the competitive position of the securities industry, we cannot say that the industry’s interests in limiting bank activities in the securities field are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 107 S.Ct. at 757. As a consequence, we find that petitioners have standing under the FDIA to challenge the regulations at issue here.
The facts of the Clarke case bolster this conclusion. In Clarke a securities industry plaintiff asserted standing on the basis of competitive injury under the McFadden Act. 107 S.Ct. at 754. The language of that Act does not expressly protect the competitive position of the securities industry, and neither is any such intent on the part of Congress discernible from the legislative history. See Securities Industry Ass’n v. Comptroller of the Currency, 765 F.2d 1196, 1197 (D.C.Cir.1985) {en bañe) {per curiam) (Scalia, J., dissenting from denial of rehearing en banc) (dissent from Court of Appeals decision upheld in Clarke argues that Congress no more meant the McFadden Act to protect the securities industry’s competitive position than it meant the Act to protect the position of “businesses competing for the parking spaces that an unlawful branch may occupy”). Nevertheless, the Supreme Court found that securities industry competitors were “very reasonable candidates” to seek review of the agency’s ruling in that case. We see no basis for distinguishing the situation in Clarke for standing purposes from that confronting us in the present case.
Finally, we find no indication “fairly discernible in the statutory scheme” of congressional intent to preclude judicial challenges by this particular class of petitioners. Clarke, 107 S.Ct. at 757. This case does not, for example, present a situation in which permitting suits by plaintiffs otherwise within the zone of interest would “severely disrupt [a] complex and delicate administrative scheme.” Id. (quoting Community Nutrition Institute, 467 U.S. at 348, 104 S.Ct. at 2455).
III. The Glass-Steagall Act Challenge
Petitioners present a straightforward statutory argument. Section 21 of the Glass-Steagall Act makes it illegal:
For any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling, or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of receiving deposits * * *.
12 U.S.C. § 378(a)(1). Petitioners interpret the phrase “to any extent whatever” to bar insured nonmember banks from having subsidiaries or affiliates engaged in the securities business. FDIC responds that when Congress intended to bar subsidiary or affiliate relationships of this sort it clearly indicated that intent, and that in any event the court should defer to its reasonable interpretation.
A.
In weighing these competing interpretations of § 21 and the Glass-Steagall Act, we are bound by a venerable line of precedent counseling judicial deference toward an agency’s evaluations of the statutes that give it legal life and authority. See, e.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). That line of cases recently culminated in the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which established a simple two-part test, now familiar. If Congress has spoken clearly to the issue presented in a case, that intent controls. 467 U.S. at 844, 104 S.Ct. at 2782. If the agency’s interpretation is contrary to the clear intent of Congress, the agency’s interpretation is invalid. If, on the other hand, Congress had no clear intent as to the particular question at issue, the courts may invalidate the agency’s interpretation only if it is “unreasonable” or “impermissible.” Id. As we find in the present case that Congress clearly intended § 21 to allow insured nonmember banks to maintain subsidiary or affiliate relationships with securities firms, we uphold FDIC’s interpretation of § 21 and affirm the District Court. Given this clear intent, we need not reach Chevron’s “reasonableness” prong of analysis.
B.
Congress enacted the Glass-Steagall Act in response to the dramatic wave of bank failures of the early Depression, a wave that many perceived to have been the result of securities speculation by the banking industry. See Board of Governors, 450 U.S. at 61 & n. 28, 101 S.Ct. at 984 & n. 28; Camp, 401 U.S. at 629-30. The Act seeks to separate the banking and securities industries “as completely as possible.” Board of Governors, 450 U.S. at 70, 101 S.Ct. at 989. But while Congress may have intended to build an insurmountable barrier between member banks of the Federal Reserve System and the securities industry, see 12 U.S.C. §§ 24, 78, 377 (1982), Congress was far from certain in 1933 that it had authority to effect such a sweeping separation for insured state nonmember banks. In fact, several members of Congress nervously commented during the debate leading to enactment of the bill that Congress might lack power to regulate nonmember banks at all. See 75 Cong.Rec. 9905 (May 10, 1932) (remarks of Sen. Wal-cott); id. at 9911, 9913-14 (remarks of Sen. Bulkley).
The hesitation of the 73rd Congress to regulate state nonmember banks is quite apparent in the actual language of the Act. National banks and banks that have chosen to become members of the Federal Reserve System are subject to stringent regulation that bars them from the securities field. Section 16 severely limits the ability of national banks to deal in securities and bars them from underwriting securities. 12 U.S.C. § 24 (1982); see also Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052 (D.C.Cir.1986). Section 20 bars firms “principally” engaged in securities transactions from affiliating with member banks. 12 U.S.C. § 377 (1982). Section 32 bars member banks from sharing officers or board members with securities firms. 12 U.S.C. § 78 (1982).
Only § 21 regulates both member and nonmember banks. Section 21 bars any “person, firm, corporation, association, business trust, or other similar organization” from engaging in securities business while receiving deposits “to any extent whatever.” 12 U.S.C. § 378 (1982). It says nothing explicitly about the propriety of insured nonmember banks establishing subsidiaries or affiliates that engage in the securities business. Petitioners suggest, nevertheless, that Congress intended that the section prohibit such relationships.
This argument is difficult to support. If we read § 21 to prohibit insured nonmember banks from establishing securities subsidiaries or affiliates, the coherence of the statute as a whole begins to crumble. Section 21 applies to both member and nonmember banks. If it prohibits all bank affiliate or subsidiary relationships with securities firms, then § 20’s somewhat permissive language, which allows member banks to establish affiliate relationships with firms doing some limited amount of securities work, becomes meaningless. Accepting petitioners’ interpretation, therefore, would require us to eliminate a provision of the statute, a clear violation of a fundamental canon of construction. See National Insulation Transportation Committee v. ICC, 683 F.2d 533, 537 (D.C. Cir.1982); In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C. Cir.1980).
Petitioners play down this difficulty by arguing that § 20 constitutes a special exception for member banks to the general prohibition set out by § 21. Petitioners submit that although banks generally cannot maintain affiliate or subsidiary relationships with securities firms “to any extent whatever,” § 20 specifically authorizes member banks to maintain such relationships with firms not “principally” engaged in securities work. Nonmember banks, however, cannot maintain such relationships. This explanation suffers from two readily apparent flaws.
First of all, Congress knew how to indicate that a section of the Act was intended as a specific exception to another section. Congress amended § 21 in 1935 to include language that expressly indicated that activities implicitly authorized under § 16 of the Act were not barred by § 21’s broad language. Act of August 23, 1935, c. 614, § 303, 49 Stat. 707; see also Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052, 1056 (D.C.Cir.1986) (discussing interplay of §§ 16 and 21). Congress has not done the same for § 20, and we see no basis whatever for inferring such intent. On the contrary, § 20 speaks in the language of prohibition, not authorization. Member banks “shall not be affiliated in any manner * * * with any corporation, association, business trust, or other similar organization engaged principally” in securities activities. 12 U.S.C. § 377 (1982). Congress presumably did not indicate that § 20 should be an “exception” to § 21 because it did not intend that § 21 should extend to the activities of affiliates and subsidiaries in the first place. The two sections regulate separate activities.
Second, if we were to accept petitioners’ argument that § 20 exempts member banks from the full prohibitory force of a § 21 that applies to both banks and their affiliates, we would be left with an anomalous result. Under petitioners’ interpretation, member banks would be subject to less stringent § 21 regulation than would be insured nonmember banks. This outcome is dramatically counter to what we would expect on examination of the statute and its history. It seems clear that Congress felt its efforts to regulate nonmember banks rested on shaky, if not ramshackle, authority. Members of Congress explicitly discussed this problem as it pertained to regulation of nonmember bank affiliates, and specifically indicated that regulation of such affiliates was probably beyond the power of Congress. That Congress would have imposed more demanding regulation on nonmember banks than on member banks, given this uncertainty, seems utterly improbable. Absent clear evidence, we will not infer that Congress had such contrary, even irrational, intentions for the statute.
Despite petitioners’ considerable efforts, then, the language and structure of the Glass-Steagall Act do not support the view that § 21 bars insured nonmember banks from maintaining affiliate or subsidiary relationships with securities firms. Section 21 on its face fails to prohibit such relationships, and any judicial inference of such a prohibition would be inconsistent with the overall structure of the Act. This reasoning standing on its own demonstrates not only that FDIC’s interpretation of § 21 is “permissible” but, in fact, that it is the only valid approach.
Moreover, the Supreme Court’s guidance on the proper scope of § 21 supports the agency’s interpretation. In Board of Governors v. Investment Company Institute, 450 U.S. 46, 101 S.Ct. 973, 67 L.Ed.2d 36 (1981), the Supreme Court addressed the argument that § 21 applies to bank holding companies as well as to banks, and that as a consequence it bars bank holding company subsidiaries from engaging in securities work. The Court found that “the language of § 21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits.” 450 U.S. at 58 n. 24, 101 S.Ct. at 982 n. 24. As if this statement were not clear enough, the Court went on to emphasize that because § 20 specifically addressed the proper relationship between member banks and securities affiliates, “the structure of the Act reveals a congressional intent to treat banks separately from their affiliates. The reading of the Act urged by respondent [arguing for ‘single entity’ treatment of banks and their affiliates under § 21] would render § 20 meaningless.” Id. And to lay the question to rest once and for all, the Court stated that under Glass-Steagall “bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.” Id. at 60, 101 S.Ct. at 983. In light of our reasoning above, this language clearly guides the proper holding on the issue presented in this case. The agency’s interpretation of § 21 is entirely consistent with Congress’ intent, and must stand.
C.
Petitioners put forward no direct response to the Supreme Court’s analysis in Board of Governors. Instead, they argue that the FDIC’s rule is at odds with “the legislative purpose underlying Section 21.” Brief for Appellants/Petitioners at 21. This is not a legislative history argument aimed at proving that the express terms of § 21 actually do bar nonmember bank activities of the sort the petitioners challenge. Rather, petitioners’ argument merely adverts to the general policy objectives of the Glass-Steagall Act and attempts to demonstrate that those policies are thwarted, or at least are not furthered, by the FDIC rule at issue here. Id. at 27-33.
Petitioners’ policy arguments can carry but little weight in a judicial forum. Our duty as a court is to interpret the banking laws, not to set national banking policy on the basis of general objectives set out by Congress. See, e.g., American Bankers Ass’n, 804 F.2d at 749. Petitioners have failed to demonstrate that Congress’ intent in this provision is unclear. Even if they had, and if every policy objection they raise were irrefutable, we could not overturn FDIC’s regulation unless the face of the statute and its legislative history demonstrated that FDIC’s interpretation was “impermissible” or “unreasonable.” Chevron, 467 U.S. at 843-44, 104 S.Ct. 2782. Petitioners’ “legislative purpose” arguments do not take this approach, however. They focus on policy alone. As the Supreme Court recently stated, “When a challenge to an agency construction, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left by Congress, the challenge must fail.” Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. It is not our place to implement congressional policy in ways Congress itself fails to pursue. Board of Governors v. Dimension Financial Corp., — U.S. -, 106 S.Ct. 681, 688-89, 88 L.Ed.2d 691 (1986); TVA v. Hill, 437 U.S. 153, 194-95, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117 (1978). Congressional intent for § 21 is clear, and FDIC’s interpretation is in line with that intent. We need go no further to uphold FDIC’s view of the matter.
IV. The Federal Deposit Insurance Act Challenges
Petitioners also argue that the rule violates the “unsafe and unsound banking practices” provisions of the Federal Deposit Insurance Act. 12 U.S.C. §§ 1818(a) & (b), 1816 (1982) (powers of state chartered banks must be “consistent with the purposes of” federal deposit insurance). Quoting the Fifth Circuit, petitioners assert that the FDIC rule here presents an “abnormal risk of loss or damage to an institution, its shareholders, or the agencies administering the insurance funds.” Brief for Appellants/Petitioners at 33-34, quoting Gulf Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, 651 F.2d 259, 264 (5th Cir.1981).
The FDIC itself, of course, has recognized that bank subsidiaries and affiliates engaged in securities activities pose dangers under these two sections. See 49 Fed.Reg. at 46709. In fact, the rule promulgated by the FDIC undertakes to ensure that the harms Congress sought to prevent with the Federal Deposit Insurance Act do not become real. Petitioners’ argument, then, is not that the rule is inconsistent with these sections of the FDIA, but rather that the rule does not go far enough, as it fails to find affiliate or subsidiary relationships of this kind per se “unsafe and unsound.”
The failure of this challenge on its merits is unquestionable. Petitioners’ FDIA arguments rest, in the first instance, on the assumption that the FDIC rule is invalid under § 21. See Brief for Appellants/Petitioners at 34. As we have found above that the rule is entirely consistent with
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
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.
ST. PAUL MERCURY INDEMNITY CO. OF ST. PAUL v. LONG et al.
No. 5866.
Circuit Court of Appeals, Third Circuit.
Sept. 11, 1936.
John A. McKenna, of Newark, N. J. (Herbert Plaut, of New York City, of counsel), for appellant.
Quinn, Parsons & Doremus, of Red Bank, N. J. (Theodore D. Parsons, of Red Bank, N. J., of counsel), for appellees.
Before DAVIS and THOMPSON, Circuit Judges, and DICKINSON, District Judge.
DAVIS, Circuit Judge.
This is an appeal from a judgment of the District Court in favor of the plaintiff Long for $7,148.78, and for the plaintiff Fleming for $5,174.53.
On October 8, 1930, Long and Fleming were riding in Long’s automobile when it was struck by a truck belonging to the Long Trucking Company. The trucking company has no connection with the plaintiff " Long. The plaintiffs instituted suit against the trucking company in the Monmouth county common pleas court of New Jersey, to recover for personal injuries and damage to the automobile. Long was awarded a judgment for $5,783, and Fleming for $4,442 against the trucking company on July 22, 1931. The plaintiffs thereupon obtained a writ of execution which was returned, marked “nothing found,” by the sheriff, acting upon advice of counsel for the plaintiffs, and without making any real investigation into the assets of the trucking company.
The plaintiffs commenced suit in the Supreme Court of New Jersey against the appellant in October, 1931. The action was removed to the federal District Court in November, 1931, and came on for trial before Judge Clark and a jury on June 8, 1932. The defendant contended: First, that the truck involved in the accident was not the one covered by the policy of insurance; second, that if the policy did cover this truck, the policy was void because the trucking company held the trucks upon a conditional sales, or lease, basis, and consequently it was guilty of a breach of the warranty in the policy requiring that the sole and unconditional ownership of the automobile be in the insured; and, third, that the trucking company was not insolvent, and hence the return of the writ of execution unsatisfied did not comply with chapter 153, Laws New Jersey 1924, P.L. p. 352 (Comp.St.Supp.1924, N.J. § 99— 90e), which requires, as a condition precedent to the maintenance of this type of action, that the return of the sheriff of the execution unsatisfied be by reason of the insolvency or bankruptcy of the assured.
Toward the end of the first day of the trial the court declared: “I cannot see any question for the jury in any of the testimony that has been taken today. I haven’t seen any issues of fact. * * * ” To this the defendant agreed, but counsel for plaintiffs protested that the question of insolvency was based upon questions of'fact, which were for the jury to decide. The court then asked: “Well, will you agree to make it simple, to leave to me the question of solvency?” To this the defendant agreed, but the plaintiff did not say anything. Thereupon the jury was dismissed and no exception was taken to this action. The trial was then adjourned sine die. In February, 1934, the defendant offered additional evidence, which was received. In September, 1934, the parties presented further evidence to the court. In March, 1935, Judge Clark handed down his decision, by letter, in which he found for the plaintiffs upon all questions and judgment was entered thereupon.
The primary question is whether or not this court has the power to review the findings of the District Court. Congress has provided that issues of fact in civil cases may be tried and determined without a jury whenever the parties or their attorneys agree to waive the jury by a written stipulation filed with the clerk, or by oral stipulation made in open court and entered in the record. 28 U.S.C.A. § 773. This does not iipply that a jury may not be waived without conforming to these statutory requirements, but the Supreme Court has repeatedly held that if these requirements are not complied with, the hearings before the District Court are in the nature of a submission to an arbitrator and the court’s determination of the issues of fact cannot be reviewed on appeal. Kearney v. Case, 12 Wall.(79 U.S.) 275, 20 L.Ed. 395; Bond v. Dustin, 112 U.S. 604, 5 S. Ct. 296, 28 L.Ed. 835; Campbell v. United States, 224 U.S. 99, 105, 32 S.Ct. 398, 56 L.Ed. 684; Duignan v. United States, 274 U.S. 195, 198, 199, 47 S.Ct. 566, 71 L.Ed. 996.
The appellant, however, contends that the procedure adopted in the present case is more akin to a request by both parties to a directed verdict, rather than a case in which the parties before trial agree to waive a jury. But none of the formalities, for either of these methods of taking the case from the jury, were complied with. It does appear, however, from the record that Judge Clark warned counsel that a written stipulation should be filed. It should be said that the learned trial judge understood the action of the parties to be a waiver of the jury, and this was a fair and logical conclusion* to be drawn from their actions at the time. But since counsel disregarded the directions of the court and did not file a written stipulation and no oral stipulation was made in open court and entered in the record, the determination of the issues by the judge was that of an arbitrator and may not be reviewed on appeal.
However, if we are in error in this, the result will be the same, for the decision of the District Court was correct and should be affirmed on the merits, as we later show.
The appellant contends that the truck involved in the- accident was not the one covered by the policy. Whether or not this is true, the question was one for the jury. Knabe v. Independence Indemnity Co., 144 A. 179, 7 N.J.Misc. 93; Lorenz v. Bull Dog Automobile Ins. Association, of Chicago (Mo.App.) 277 S.W. 596; Belt Automobile Indemnity Association v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787, 791. If the procedure adopted in the court below should be interpreted as a dismissal of the jury after motions for-a directed verdict were made by both parties, the decision of the learned trial judge is to be accorded the same effect as would be given to a verdict of a jury (Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654; Williams v. Vreeland, 250 U.S. 295, 39 S.Ct. 438, 63 L.Ed. 989, 3 A.L.R. 1038; Southern Surety Co. v. Fidelity & Casualty Co. (C.C.A.) 50 F.(2d) 16), and he was clearly of the opinion that the truck involved in the accident was the same truck which was covered by the policy. There is ample evidence to sustain that opinion. It was shown that the Long Trucking Company purchased two 6%-ton Mack trucks; that it insured two 6%-’ton Mack trucks; that at the time it took out the insurance it owned only two 6%-ton Mack trucks. This and other evidence tends to show that the truck involved in the accident was the same truck that was covered by the insurance. That the motor and serial numbers given in the policy do not coincide with the motor and serial numbers of the truck causing the accident might have been, as the court found, a mistake which occurred in transcription. They were mere matters of description for identification which are immaterial to the risk and are not grounds for a reversal. White v. Home Mutual Insurance Association of Iowa, 189 Iowa, 1051, 179 N.W. 315; Wyman v. Security Insurance Company of California, 202 Cal. 743, 262 P. 329; De Paola v. National Insurance Co., 38 R.I. 126, 94 A. 700; Sunderlin on Automobile Insurance, § 177, p. 103.
That the Court of Chancery of New Jersey refused to reform the policy and correct the apparent error (Long Trucking Company v. St. Paul Indemnity Company, decided by the Court of Chancery of New Jersey, 1930, unreported) is immaterial to the issue here and cannot possibly afford a ground for reversal, for it is not necessary to reform a policy to correct mere matters of description. White v. Home Mutual Ins. Association of Iowa, supra; De Paola v. National Insurance Co., supra; 32 Corpus Juris, § 514, p. 1288.
The Long Trucking Company, after the commencement of the present litigation, brought suit in the Monmouth district court of New Jersey to recover from the appellant expenses incurred by it in defending the tort action brought by Long and Fleming. The decision was for the appellant, and it contends that since the same questions were presented in that case as in the present case, the judgment in that case is a bar to recovery here on the ground of res «judicata. But that is untenable, for a federal court will give only that force to an adjudication of a state tribunal which would be given to it by the courts of that state. Covington v. First National Bank of Covington, 198 U.S. 100, 25 S.Ct. 562, 49 L.Ed. 963; Wright v. Georgia Railroad & Banking Co., 216 U.S. 420, 30 S.Ct. 242, 54 L. Ed. 544. In Bergin v. Ganley, 107 N. J.Law, 242, 154 A. 731, the Court of Errors and Appeals of New Jersey held that a suit brought in a state district court subsequent to a proceeding before the Supreme Court of New Jersey, on the same subject-matter, which reached a conclusion in the district court before judgment in the Supreme Court, was not res judicata as to the Supreme Court. If the Supreme Court of New Jersey was not bound by the decision of the district court of that state, neither was the United States District Court bound by the decision of the state district court in the case at bar.
As to the second and third elements of defense, we believe that there was sufficient evidence both as to the insolvency of the insured, and the sole and unconditional ownership of the trucks by the insured to sustain the judgment entered in the District Court.
The judgment of the District Court is therefore affirmed.
No opinion for publication.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_procedur
|
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.
Samson EISNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 15991.
United States Court of Appeals Sixth Circuit.
Oct. 6, 1965.
Eugene J. Stagnaro, Jr. (Court Appointed), Cincinnati, Ohio, for appellant.
Wayne J. Carroll, Asst. U. S. Atty., Louisville, Ky., William E. Scent, U. S. Atty., Louisville, Ky., on brief, for ap-pellee.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.
CECIL, Senior Circuit Judge.
Samson Eisner, the petitioner-appellant herein, was convicted in the United States District Court for the Western District of Kentucky, on November 18, 1960, on a one-count indictment which charged that he knowingly received and concealed certain stolen furs which had been transported in interstate commerce. He was sentenced to five years’ imprisonment and fined $1500. His conviction was appealed to this Court and was affirmed in United States of America, plaintiff-appellee, v. Eisner, defendant-appellant, 6 Cir., 297 F.2d 595, cert. den. 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17.
On April 20, 1964, the appellant filed a motion under Section 2255, Title 28, U.S.C., for the vacation of his sentence on the ground that the indictment did not charge an offense against the United States and that the sentence imposed was in violation of the constitution and laws of the United States. On the same day he filed a motion for a hearing under Rule 52(b) on newly discovered evidence. Both of these motions were overruled in the District Court and this appeal followed.
It is alleged that the indictment is fatally defective because it does not include the language “Contrary to law in violation of Section 2315, Title 18, U.S.C.,” and because it does not state where the offense was committed. This Court has held that the sufficiency of the indictment is not subject to attack under Section 2255, Title 28, U.S.C. Stegall v. United States, 6 Cir., 259 F.2d 83, 84, cert. den. 358 U.S. 886, 79 S.Ct. 128, 3 L.Ed.2d 114. See also Kreuter v. United States, 10 Cir., 201 F.2d 33, 35. The general rule is that the sufficiency of an indictment cannot be questioned on a motion under Section 2255 unless it is so defective on its face as not to charge an offense under any reasonable construction. Klein v. United States, 7 Cir., 204 F.2d 518, 514; Walker v. United States, 7 Cir., 218 F.2d 80, 81.
Considering the indictment we are satisfied that it adequately charges an offense against the laws of the United States and that it is not defective on its face. In Anderson v. United States, 6 Cir., 215 F.2d 84, 86, cert. den. Lewis v. United States, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698, we said: “This court has held repeatedly that the required clarity of the charge laid in an indictment is only such as will fairly apprise the defendant of the crime intended to be alleged, so as to enable him to prepare his defense and to make the judgment, whether of acquittal or conviction, a complete defense to a second prosecution for the same offense.” Bettman v. United States, 224 F. 819, 826, C.A. 6, cert. den. 239 U.S. 642, 36 S.Ct. 163, 60 L.Ed. 482; Pierce v. United States, 6 Cir., 86 F.2d 949, 951; Bogy v. United States, 96 F.2d 734, 736, C.A. 6, cert. den. 305 U.S. 608, 59 S.Ct. 68, 33 L.Ed. 387; Hughes v. United States, 114 F.2d 285, 288, C.A. 6; Richardson v. United States, 150 F.2d 58, 60, C.A. 6; Ross v. United States, 180 F.2d 160, 164, C.A. 6. The indictment in the case before us meets all the requirements of a valid indictment. The question of the sufficiency of the indictment was one of law and did not require a hearing by the district judge.
We are at a loss to understand what point the appellant intended to raise by his motion for a hearing under Rule 52(b) on newly discovered evidence. This rule which refers to plain errors occurring at a trial is not applicable to a Section 2255 proceeding. Section 2255 provides for a collateral attack on a judgment of conviction and is not a substitute for appeal for alleged errors committed at the trial. Newly discovered evidence may be the subject of a motion for a new trial under Rule 33 Federal Rules of Criminal Procedure. That rule limits the filing of such a motion to two years after final judgment. The motion before us was not timely filed as a motion for new trial on newly discovered evidence.
The appellant alleges, in support of this motion, that at the time of his trial in the District Court, there was pending against him, in the Circuit Court of Warren County, Kentucky, a traffic charge of “running a stop sign” in Bowling Green, Kentucky. This is the charge upon which the appellant was first arrested and which led to the search of his car under a federal search warrant. The appellant further alleges that subsequent to his conviction in the District Court, the Circuit Court of Warren County dismissed the traffic charge on the ground that the arrest was illegal. He then argues that the evidence obtained and seized out of an illegal arrest is inadmissible. The record from the Circuit Court of Warren County does not support the claim that the traffic charge was dismissed on the ground of an illegal arrest. A certified copy of the order from the Circuit Court shows only that a jury returned a verdict of “not guilty of the charge of running a stop sign.”
Counsel appointed by the Court to represent the appellant on this appeal argues that the search was illegal. The basis of this argument is that the arrest on an alleged minor traffic violation was a subterfuge for a search of the appellant’s car and was therefore illegal. This question was not presented to the trial judge in this proceeding nor was it specifically raised on the appellant’s direct appeal to this Court.
Prior to the appellant’s trial in the District Court, the trial judge heard and determined adversely to the appellant a motion to suppress evidence. The denial of that motion was the principal question submitted to this Court on the appellant’s appeal. The Court said in its opinion, 297 F.2d 595, 596: “Appellant attacks the validity of the warrant and the manner of its execution.” The question of illegality now urged upon us could have been raised on the motion to suppress evidence in the trial court and on the subsequent appeal to this Court. We do not look with favor upon an attempt to raise questions in a collateral attack on a judgment of conviction which could have and should have been raised at the time of trial. Neither will we pass on questions on appeal that were not first heard and determined by the trial judge. Duignan v. United States, et al., 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996; Blair, Commissioner v. Oesterlein Machine Company, 275 U.S. 220, 225, 48 S.Ct. 87, 72 L.Ed. 249; Burnet, Commissioner v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; General Utilities & Operating Co. v. Helvering, Commissioner, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154; Helvering, Commissioner v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511; Helvering, Commissioner v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755; Helvering, Commissioner v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796.
The judgment of the District Court is affirmed.
. “(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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
UNITED STATES of America, Plaintiff-Appellee, v. Elias MARTINEZ, Defendant-Appellant.
No. 79-5558.
United States Court of Appeals, Fifth Circuit.
Nov. 13, 1980.
David Bruce Neeley, McAllen, Tex., for defendant-appellant.
James R. Gough, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before THORNBERRY, GEE and REAVLEY, Circuit Judges.
GEE, Circuit Judge:
Defendant Elias Martinez appeals his criminal conviction on the ground that he was denied effective assistance of counsel. Martinez was tried on seven counts of distributing or conspiring to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, and he was represented by retained counsel, Matias Morin. Among the witnesses against Martinez was Alonso Quintanilla, Jr., who figured in three of the counts upon which Martinez was tried. Quintanilla had previously been convicted on a heroin charge arising out of the same transaction as underlay one of the counts against Martinez, and the government had dismissed another charge against Quintanilla that involved the same events as another of Martinez’ counts. The attorney who represented Quintanilla on these matters was also Matias Morin.
As Martinez’ trial was about to begin, Morin observed that Quintanilla was in the courtroom as a witness for the prosecution, which was a surprise to him because Quintanilla’s name had not been on a list of government witnesses that the prosecution had provided him. As soon as the court convened, Morin informed the judge that he had previously represented Quintanilla on charges related to the defendant’s, that he would feel uncomfortable cross examining Quintanilla because to do so thoroughly would require him to broach matters that Quintanilla had told him in confidence, and that this discomfort might impair his effectiveness in representing Martinez. The court, however, instructed Morin to proceed to trial and to question Quintanilla vigorously because the charges against Quintanilla had been resolved and Morin’s representation of him completed and thus Morin had no conflict of interest that might impair his representation of Martinez. Morin complied with the court’s directive and, at the appropriate time, cross examined Quintanilla. Martinez was convicted on all seven counts and was given concurrent sentences for each of ten years imprisonment followed by four years special probation. We find that the defendant’s convictions on some of the seven counts cannot stand.
The rule in this circuit is clear: if a criminal defendant is represented at trial by an attorney, either appointed or retained, who labors under an actual, and not merely a potential, conflict of interest, the defendant has been denied effective assistance of counsel as a matter of law; and, unless he has knowingly and intelligently waived his sixth amendment right to conflict-free representation, reversal is automatic. No prejudice need be shown. Stephens v. United States, 595 F.2d 1066 (5th Cir. 1979); Zuck v. Alabama, 588 F.2d 436 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978). Although we have previously applied this rule where a defendant’s attorney concurrently represented a prosecution witness at trial, Stephen, supra; Alvarez, supra, we apparently have not yet applied it where the attorney only previously represented such a witness. We do so now, however, on the facts of the present case.
The defendant’s attorney informed the court that effective representation of his client would compel him to .violate confidences that had been entrusted to him by his prior client and that he was reluctant to do so. By his own admission, therefore, Morin perceived-and rightly so-that he had a duty to Quintanilla to preserve the latter’s confidential communications; and he felt that this duty, coupled with his commitment to Martinez to serve “as a vigorous advocate having the single aim of acquittal by all means fair and honorable,” Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962), presented him with an actual conflict of interest. Since Morin explained his predicament to the court as soon as he became aware of it and not, for example, in a belated motion for mistrial after he had already cross examined his former client, see United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975), we have no reason to doubt his sincerity. The record of Morin’s cross examination of Quintanilla, moreover, strongly suggests that Morin-torn between conflicting duties-in fact found it necessary to trench upon the confidential relationship between himself and Quintanilla. While the record thus appears to disclose that Morin in fact interrogated Quintanilla quite vigorously for the benefit of Martinez, we cannot be sure that, because he failed to pull some punches, he refrained from pulling others. And even could we be sure, our precedents establish that a lack of actual prejudice is irrelevant if an actual conflict of interest obtains.
We conclude, therefore, that Martinez did not receive effective assistance of counsel with regard to the cross examination of Quintanilla. It is clear, moreover, that Martinez did not waive his right to such assistance:
In order for a defendant effectively to waive his right to conflict-free counsel, the trial judge should affirmatively participate in the waiver decision by eliciting a statement in narrative form from the defendant indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel. United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); see also Gray v. Estelle, 574 F.2d 209, 213 (5th Cir. 1978); United States v. Mahar, 550 F.2d 1005 (5th Cir. 1978).
Alvarez, 580 F.2d at 1260; see Zuck, 588 F.2d at 440. Not only does the record fail to show that the trial judge addressed the defendant at all on the subject of waiver, but, since Morin’s discussion with the judge was a bench conference, the record does not even support an inference that the defendant was aware that his attorney believed himself plagued by a conflict of interest.
While we find that Martinez’ sixth amendment right was violated and that that right was not waived, we do not find that the violation infected the entire trial. Martinez’ counsel was constitutionally ineffective only with regard to his cross examination of Quintanilla, and Quintanilla’s testimony was conceivably relevant to three counts only of those on which Martinez was tried. We therefore reverse the defendant’s conviction on those counts but on those alone.
AFFIRMED in part, REVERSED in part.
. Consider, for example, the following passages of their dialogue:
Q [by Morin] Let’s go on to these other three ounces that you delivered in September. Didn’t you at one time tell me you got these three ounces from a man in Reynosa?
A [by Quintanilla] No.
Q Did you ever tell me where you got these three ounces?
A No, just now.
Q This is the very first time you told me where you got these three ounces, is that correct?
A Yes.
Q Let me ask you, didn’t you at one time give me a written statement telling me where you got those three ounces?
A Yes, I had given a writ, but the owner had not signed as to who those ounces belonged to.
Q What did you state in that written statement you gave me?
A I don’t remember any more.
Q Do you remember anything?
A No.
Q Do you remember mentioning any names?
A Yes, I do remember a name, but I don’t remember the name of the man who went to buy from me at the house.
Q What’s that name?
A I don’t remember.
Q Do you remember anything else you mentioned in that statement?
Q Let me ask you, did you mention this man’s (indicating [Martinez]) name in that statement?
A No. But you know who it was.
Q His name wasn’t there?
A It wasn’t. But you knew who was there.
Q Where did you sell these three ounces?
A On Tower Road.
Q Who lives there at that place?
A It was a friend who lived there. The place where I made the deal was at the house of one of his brothers.
Q Who was your friend?
A His name is Roberto, but I don’t remember his last name.
Q Robert Valdez, would that refresh your memory?
A Yes.
. All of the cases that have been brought to our attention in which this court did not find ineffective assistance of counsel where a defense attorney had previously represented a witness, Haggard v. Alabama, 550 F.2d 1019 (5th Cir. 1977); United States v. James, 505 F.2d 898 (5th Cir.), cert. denied, 421 U.S. 1000, 95 S.Ct. 2397, 44 L.Ed.2d 667 (1975); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968), are easily distinguishable. All were decided prior to United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978), which relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), held that if a defendant’s attorney had an actual conflict of interest, no prejudice need be shown, and all rested at least in part on the absence of prejudice to the defendant. In all of the cases except Haggard, moreover, the attorney had represented the witnesses on charges unrelated to those for which the defendant was tried.
. The affected counts are those numbered one, six, and seven in the indictment.
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_appel1_3_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 appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "courts or legislative". Your task is to determine which specific federal government agency best describes this litigant.
George CROCKETT, Jr., individually in his capacity as a member of the United States House of Representatives, et al., Appellants, v. Ronald Wilson REAGAN, individually and in his capacity as President of the United States, et al.
No. 82-2461.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 18, 1983.
Decided Nov. 18, 1983.
As Amended Nov. 18, 1983.
Peter Weiss, New York City, a member of the Bar, Second Dept. Appellate Div. of N.Y., pro hac vice by special leave of Court with whom Ira Lowe and Reverend Robert F. Drinan, S.J., Washington, D.C., were on brief, for appellants. Frank E. Deale, New York City, also entered an appearance for appellants.
Vincent M. Garvey, Atty., Dept. of Justice, with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty. and Brook Hedge, Atty., Dept, of Justice, Washington, D.C., were on brief, for appellees. Neil H. Koslowe, Washington, D.C., Atty. for Dept. of Justice also entered an appearance for appellees.
Steven M. Schneebaum and Keith R. Fisher, Washington, D.C., were on the brief for Intern. Human Rights Law Group, ami-cus curiae, urging reversal.
Sara E. Lister and Sarah E. Burns, Washington, D.C., were on brief, for Nat. Council of Churches of Christ in the United States of America, et al., amici curiae, urging reversal.
Alan Dranitzke, Washington, D.C., was on brief, for Catholic Peace Fellowship, et al., amici curiae, urging reversal.
Jose Acosta, El Paso, Tex., was on brief, for Border Ass’n for Refugees from Central America, amicus curiae, urging reversal.
Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calió, Washington, D.C., were on brief, for Senators Jepsen, et ah, amici curiae, urging affirmance.
Before EDWARDS and BORK, Circuit Judges, and LUMBARD, Senior Circuit Judge, United States Court of Appeals for the Second Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981).
PER CURIAM:
This is an appeal from the dismissal of a suit brought by 29 Members of Congress against President Reagan and other United States officials, challenging the legality of the United States’ presence in, and military assistance to, El Salvador. The principal contention of the plaintiffs-appellants is that United States military officials have been introduced into situations in El Salvador where imminent involvement in hostilities is clearly indicated by the circumstances and, consequently, the President’s failure to report to Congress is a violation of both the War Powers Resolution (“WPR”) and the war powers clause in the Constitution. The appellants also alleged that violations of human rights by the Government of El Salvador are pervasive and that, in the absence of a certification of “exceptional circumstances” by the President, United States military assistance to El Salvador violates the Foreign Assistance Act of 1961 (“FAA”). In pursuing their claims, plaintiffs-appellants have sought, inter alia, an injunction directing that the appellees immediately withdraw all United States Armed Forces, weapons, military equipment and aid from El Salvador and prohibiting any further aid of any nature.
The District Court dismissed all of plaintiffs’ claims without resolution of the merits of their suit. Crockett v. Reagan, 558 F.Supp. 893 (D.D.C.1982). Judge Joyce Green held that the war powers issue presented a non justiciable political question. In particular, Judge Green found that the trial court did not have the resources or expertise to resolve the particular factual disputes involved in this case, id. at 898, 899, and that Congress had taken no action which would suggest that it viewed our involvement in El Salvador as subject to the WPR. Id. at 899. Judge Green’s dismissal of the FAA claim was based on the equitable discretion doctrine, which counsels judicial restraint where á congressional plaintiff’s dispute is primarily with his or her fellow legislators. Riegle v. Federal Open Market Committee, 656 F.2d 873, 881 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).
We have reviewed with care the parties’ contentions and submissions and we can find no error in the judgment of the District Court. We therefore affirm the dismissal of this case for the reasons stated by the District Court.
So ordered.
. 50 U.S.C. §§ 1541-1548 (1976). Section 4(a) of the WPR, 50 U.S.C. § 1543(a) (1976) provides:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
. U.S. Const, art. 1, § 8, cl. 11.
. 22 U.S.C. §§ 2151-2443 (1976 & Supp. V 1981). Section 502B of the FAA prohibits security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights,” unless the President certifies that “extraordinary circumstances exist warranting provision of such assistance.” 22 U.S.C. § 2304(a)(2) (Supp. V 1981).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "courts or legislative". Which specific federal government agency best describes this litigant?
A. one or both houses of Congress
B. congressional committee
C. officer of Congress or other Congress related actor
D. Federal District Court (or judge)
E. Federal Circuit Court of Appeals (or judge)
F. Court of Claims (or judge)
G. Tax Court (or judge)
H. Bankruptcy Court (or judge)
I. other court or judge
Answer:
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songer_casetyp1_7-3-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
UNITED STATES of America, Appellant, v. R. H. TAYLOR et al., Appellees.
No. 20516.
United States Court of Appeals Fifth Circuit.
June 22, 1964.
Adhered to on Rehearing Sept. 14, 1964.
See 336 F.2d 149.
Robert E. Hauberg, U. S. Atty., E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Alan S. Rosenthal, Stephen B. Swartz, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellant.
Vardeman S. Dunn, Jackson, Miss., Bruce C. Aultman, Hattiesburg, Miss., William H. Cox, Jr., Jackson, Miss., Sim-rall, Aultman & Pope, Hattiesburg, Miss., Cox, Dunn & Clark, Jackson, Miss., of counsel, for appellees.
Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge.
HUTCHESON, Circuit Judge.
The United States as assignee of its contractor’s claims and demands against a subcontractor for contractual overpay-ments instituted this action for recovery on those claims. An order granting appellee-subcontractor’s motion for summary judgment was entered, and the United States appeals that order. The order was in error. The United States’ motion for summary judgment should have been granted. On this appeal the primary questions before the court are, what law applies to the interpretation of a disputes clause in a subcontract under a contract to perform work on a government project and how such a clause should be interpreted.
Peter Keiwit Sons contracted with the United States Government acting through the Atomic Energy Commission for the construction of a gaseous diffusion plant near Portsmouth, Ohio. On March 3, 1953, appellee TaylorWheless entered into a subcontract with Keiwit to remove and grade dirt at the plant site. The subcontract required that payment should be made to the subcontractor on the basis of the number of cubic yards of material acceptably excavated. The amount of material excavated was to be determined by measuring it “in original position from cross-sections taken before stripping and after excavation and computed by the average end area method.” The parties later orally agreed to substitute the load count method for the average end method of material measurement as a practical way of making periodic quantity determinations upon which to base progress payments.
The work under the subcontract was completed in November, 1953. Keiwit then computed by the average end area method the work performed by Taylor-Wheless. Based on this computation in November, 1954, Keiwit issued Taylor-Wheless a final pay estimate indicating that payments made by the load count method exceeded those due under the average end area method, after subtracting retainage, by approximately $383,000.00. Taylor-Wheless rejected this estimate as inaccurate. Keiwit requested the Atomic Energy Commission to employ an independent survey group to determine if there was an overpayment. Such a group was employed, and they concluded that under the average end area method the overpayment less retainages amounted to $337,973.52. This computation presented to Taylor-Wheless on July 25, 1955, was also refused as inaccurate.
The parties failed to resolve their dispute and Keiwit referred the dispute to the Commission’s General Manager of Oak Ridge Operations under the provisions of the subcontract’s disputes clause. The clause was subsequently amended by agreement between the parties to provide for disputes determination by the Commission. The dispute was, therefore transferred to the Atomic Energy Commission Advisory Board of Contract Appeals (Board). No hearing had been held prior to this transfer.
The Board, after a hearing, found that after Keiwit’s initial submission of the dispute, as prescribed by the disputes clause of the contract, Keiwit and Taylor-Wheless agreed to modify the disputes clause by agreeing to submit disputes to the Commission rather than the Manager of Oak Ridge Operations. They further found that Taylor-Wheless and its attorney suggested times and places of hearing, that the chairman set a hear-' ing, that Taylor-Wheless indicated it was preparing for the hearing, agreed to a postponement of the hearing date, requested further postponements of the hearing, and, after failing to negotiate a settlement with Keiwit in December, 1956, objected to the jurisdiction of the Board and withdrew from the proceedings.
The Board proceeded to determine the issue as to overpayment under the average end area method of computation. Taylor-Wheless did not participate in the hearing. The Board did consider a document previously presented Keiwit by Taylor-Wheless entitled “Statement in Support of Taylor-Wheless Co.’s Final Estimate”. The document attempted to justify accuracy of the load count computations and attacked the accuracy of the average end area computations made by Keiwit prior to the independent survey. After considering oral and documentary evidence and Keiwit’s brief, the Board found an overpayment in the amount determined by the independent surveyors. They relied on this survey since they found that there was no showing that the final figures reflected inaccurate application of the computation principle called for in the contract, and there was adequate basis in the record for finding that the computations were accurate. This fact finding of an overpayment of $337,973.52 was adopted by the Deputy General Manager of the Atomic Energy Commission on April 8, 1958.
On August 4, 1958, the Commission’s Portsmouth Area Manager, as Contracting Officer, determined Keiwit’s overpayment to Taylor-Wheless was an allowable cost and discharged Keiwit from any obligation with respect to government funds advanced for these payments. On August 19, 1958, Keiwit assigned its claims for overpayment against Taylor-Wheless to the United States. The United States instituted this action in the district court praying for judgment in the amount of the disputes award on both the decision of the Board and the underlying claim. Taylor-Wheless moved to dismiss, then moved for summary judgment on the grounds that: withdrawal from the disputes procedure invalidated the award; the Atomic Energy Commission and not the Board was the proper hearing agency; the assignment was invalid and unenforceable; and, finally, the suit constituted a suit on an implied contract and was, therefore, barred by the Mississippi Three Year Statute of Limitations. The United States moved for summary judgment on the grounds that the award and the underlying claim were valid, viable, and enforceable. The court granted the motion of Taylor-Wheless and denied that of the United States.
The court held that: the parties had entered into an arbitration agreement; this was a remedial rather than a substantive matter; and the law of Mississippi would apply to the enforcement of the agreement in a suit such as this in which the government claimed as as-signee. Under Mississippi law the court held that “a party has a complete right, to withdraw from arbitration proceedings any time prior to the making of an award”. Therefore, the court reasoned, the award was invalid. Both parties admit that this is an accurate statement, of the law of Mississippi. They both rely on McClendon v. Shutt, 237 Miss. 703, 115 So.2d 740 (1959) and Machine Prod. Co. v. Prairie Local No. 1538, 230 Miss. 809, 94 So.2d 344, 95 So.2d 763 (1957).
The government insists, however, that federal law applied to the interpretation of subcontracts executed under government contracts and that, under such law, administrative remedies must be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush.
The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause reads as follows:
“ARTICLE VIII — DISPUTES
“Except as otherwise specifically provided in this subcontract any and all questions, issues, and disputes arising under this subcontract shall be settled if possible by negotiations and mutual agreement of the parties hereto, but in the event of their inability to agree, shall be decided by the Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board, whose decision shall be final and conclusive on the parties. In the meantime, the Subcontractor shall diligently proceed with the contract as directed.”
This clause was modified by mutual agreement on February 28, 1956 substituting the word “Commissioner” for the words “Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board”.
The disputes clause in a contract between the government and a contractor has long been recognized and approved as a valid provision for the determination of fact issues arising out of the contract. The purpose of the clause is to provide for a quick efficient determination of disputes on an administrative level, thus mitigating or avoiding large claims which might otherwise arise. The Atomic Energy Commission has made its disputes settlement procedure available to parties to subcontracts under contracts let by them. And the Commission regulations are written in terms of appeals by contractors of subcontractors.
In this case the parties to the subcontract have adopted this method of disputes determination between themselves. The subcontract is one in which many aspects of the relations between the contractor and the subcontractor were directly supervised by the government. The contract under which this subcontract was let was a cost type contract, and in fact the cost of the alleged contractual overpayment was assumed by the government as discussed above. The expeditious administrative determination of disputes arising under this contract is a matter of such importance to the federal government that the law controlling such determinations between government and prime contractors so far as applicable should apply to the construction of the disputes clause.
We are aware, as was the court in American Pipe and Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961), that there is generally considered to be no privity between a subcontractor and the government when the issue is whether the subcontractor may sue the government. We also recognize the validity of opinions applying state law to the construction of contracts between government contractors and their subcontractors. However, it is clear that federal law will control contracts between private parties if there is sufficient federal interest. It is just such an interest that we have outlined above.
Though the question of what law applies to interpret a disputes clause in a subcontract has apparently never arisen before, federal courts have applied the body of law surrounding the interpretation of disputes clauses in government contracts to a similar clause in private subcontracts under government contracts. In United States v. United Enterprises, 226 F.2d 359 (5th Cir. 1955), a Miller Act dispute between a contractor and a subcontractor, the private subcontract contained a clause providing that the United States Engineer would determine construction and meaning of drawings and specifications. His determination was held binding on the subcontractor under the authority of United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) and United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951) . Both of these cases involve the construction under federal law of the typical disputes clause in a government contract. In E. I. DuPont DeNemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328 (4th Cir. 1955), a disputes clause in a private subcontract under a government contract was held inapplicable to a dispute of law. The court cited as authority cases involving disputes clauses in government contracts, United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154 (1951) and United States v. J. A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000 (1946). The court also held that as an arbitration agreement the clause was inapplicable. Despite the language analyzing the clause as an arbitration agreement, the case has been cited as authority for the interpretation of disputes clauses in government contracts in United States v. Hamden Co-Operative Creamery Co., 297 F.2d 139 (2nd Cir. 1961) and Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956). There are still more examples of the application of federal law to clauses in private subcontracts and the law of the private subcontract cases to government contract cases. In Liberty Products Corp. v. H. K. Ferguson Co., 90 F.Supp. 673 (E.D.N.Y.1950) a disputes clause in a private subcontract was held governed by United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) a public contract case; and in Moran Towing & Transp. Co. v. United States, 192 F.Supp. 855 (S.D.N.Y. 1960) the Liberty Products case was cited as authority for interpreting a disputes clause in a government contract case. In this opinion we merely verbalize what is implicit in the foregoing decisions.
The application of federal law to this disputes clause to determine the effect of withdrawal on the subsequent ex parte award is in this case made simple for us by the Atomic Energy Regulations governing disputes. The Regulations specifically provided that “In the event of the unexcused absence of a party at the time and place set for a hearing, the hearing will proceed and the appeal will be deemed as having been submitted without oral testimony or argument on behalf of that party.” Withdrawal does not invalidate the award any more than a withdrawal would invalidate a disputes determination by •an architect or engineer in a private ‘contract.
The remaining issues are easily «disposed of. The district court held that the amended disputes clause called for ‘determination by the commission and that representatives of the commission were eliminated from the clause by omitting reference to them in the amended version. The implication of this was that the Board which heard the dispute was not designated in the clause, and, 'therefore, its decision was of no effect. ‘The omission of the reference to representatives in the amended clause might be troublesome had not the subcontract (defined Commission as the Commission •or its duly authorized representatives. 'The Board was the proper administrative ■body to determine the dispute.
The district court held that the •assignment of all claims for overpayment to the government materially prejudiced "the rights of Taylor-Wheless, since Taylor-Wheless could not counter claim -against the government for retainage, nor did it have the same powers of 'discovery against the government to ■which it would have been entitled had the litigation been between parties to the contract. We need not determine the •accuracy of this holding. The short of it is that the subcontract provided that “This Subcontract, or any part thereof, is assignable to the Government by the •Contractor.” No matter what the case absent this clause in the subcontract, .given its presence the claims to overpayment were validly assigned to the gov■ernment.
The district court finally holds that the Mississippi three year statute of limitations bars recovery. Possibly applicable to the underlying claim, though we express no opinion on the matter, the statute is not applicable to a suit based on the disputes award made merely a few days more than one year before the assignment. The statute, of course, ceased to run at the time the claim is assigned to the government.
Taylor-Wheless in this court asserts that, since the disputes clause indicated that the subcontractor should proceed with the contract during the determination of disputes, the clause is applicable only to disputes arising during the performance of the contract. This is a much litigated issue. The better view is that the clause has no such limitation. Again, however, we do not have to determine this issue. The act of the parties in modifying the disputes clause after the termination of the work under the subcontract conclusively demonstrates that the clause was to apply to post completion disputes. This was so found by the Board.
There are no further legal issues to be determined and no facts in dispute. We hold that the judgment below must be reversed and the cause be remanded with directions to enter judgment for the United States.
The judgment of the district court is hereby reversed and remanded for further proceedings not inconsistent herewith.
. 2S U.S.C.A. § 1345.
. Appellees will be referred to as TaylorWheless for convenience. They are, in fact, R. H. Taylor and J. L. Taylor individually and as co-partners in Taylor-Wheless Co., and Taylor-Wheless Co., Inc., successor in business to the partnership.
. Taylor-Wheless has never asserted that there had been an inaccurate application of the end count principle by the independent surveyors.
. Sec. 729, Mass.Code (1942).
. United States v. Moorman, 338 U.S. 457, 460, 70 S.Ct. 288, 94 L.Ed. 256 (1950).
. United States v. Joseph A. Holpuch, 328 U.S. 234, 239, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946).
. 10 C.F.R. Sec. 3.1 (1959) (In effect during all periods here pertinent). See Cuneo, Disputes Between Sub-Contractors and Prime Contractors Under Government Contracts, 16 Fed.Bar J. 246 (1956).
. 10 C.F.R. Secs. 3.1 et seq. (1959) (In effect- during all here pertinent).
. “SUBCONTRACT ART. II The Commission had to approve any change in the scope of the subcontract that the contractor might wish to make. The Commission had to approve any equitable adjustment in the cost of the subcontract due to such changes.
“ART. IV Contractor’s findings of material changes in condition that would re-suit in an increase or decrease in cost to the subcontractor must be concurred in by the Commission.
“ART. VI The disputes clause quoted in Text.
“ART. IX Neither the subcontractor, nor any interest therein, or claim thereunder, nor any sum or sums which may be due thereunder, shall be assigned without the written approval of the contractor and the Commission.
“ART. XI Subject to the approval of the Commission the contractor could terminate the subcontract for reasons other than breach of the subcontract provisions.
“ART. XII (2) Any time after the completion of 50 per cent of the work the contractor might make the remaining partial payments in full to the subcontractor with the approval of the Commission.
“ART. XII (3) All material and work covered by partial payments made became the sole property of the government.
“ART. XII (4) The amount due under the contract after completion and acceptance of all work would be paid the subcontractor after subcontractor furnished contractor with a release of all claims against the contractor and the government arising by virtue of the contract.
“The contract also evidences many instances of direct control over the subcontractor by the Commission.
“ART. 2(111 (b) The subcontractor agreed to conform to all security regulations and requirements of the Commission.
“ART. XVII The subcontractor agreed to comply with all health, safety, and fire regulations of the Commission.
“ARTS. XXI and XXII The Commission shall always have access to drawings and specifications, and all memoranda of record value were to be property of the government.
“ART. XXVIII The subcontractor agreed to save the contractor and the government harmless from all suits, claims, and demands arising out of the work.
“ART. XXXI Subcontractor agreed to comply with all federal and state, and other laws and regulations applicable to the work performed.
“ART. XXXVII The subcontract was subject to the written approval of the Commission.
“The subcontract also contained many provisions often found in contracts between the United States and a prime contractor.
“ART. XV Subcontractor shall not employ any person undergoing sentence of imprisonment at hard labor.
“ART. XVI Subcontractor in performing the work shall not discriminate against any employee or applicant for employment because of race, creed, or color, or national origin.
“ART. XVIII No Congressman or Commissioner shall benefit from this subcontract.
“ART. XIX Subcontractor agreed that he had not employed anyone to solicit the contract on a contingent fee basis.
“ART. XXXIII Subcontractor agreed to use domestic articles in the construction unless the Commission determined otherwise.
“ART. XXXVII The subcontract was made subject to the Renegotiation Act.”
. Rumsey Mfg. Corp. v. United States Hoffman M. Corp., 187 F.2d 927 (2d Cir. 1951); D. W. Winkleman Co. v. Barr, 178 F.2d 341 (6th Cir. 1949).
. Cf. Bank of America Nat. Trust & Sav. Ass’n. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956).
. 10 C.F.R. Secs. 3.1-3.40 (1959) (In effect during all time here pertinent).
. 10 C.F.R. Sec. 3.20 (1959). Though the Regulations, note 13, supra, speak only to a disputes procedure that submits the dispute first to the parties, then to a hearing examiner, and finally by appeal to the Board for a de novo determination, the fact that the parties choose to omit the submission to the hearing examiner, an omission acquiesced in by the commission’s approving the contract and making the Board available to the parties, does not exempt them from the plainly declared ex parte policy of the board. The factual determination of the board is binding on the subcontractor though he was absent from the hearing. This is true unless such a factual determination is found to be “fraudulent (sic) or capricious or arbitrary or so-grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C.A. § 321 (1954). No attack has been here made on the fact findings of the Board.
. 10 C.E.R. Sec. 3.3 (1959).
. Note 3, supra.
. United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960); United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940).
. Silverman Bros. Inc. v. United States, 324 F.2d 287, (1st Cir. 1963).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America v. Emmett C. McKINNEY, a/k/a Charles McKinney, Appellant.
No. 71-1981.
United States Court of Appeals, District of Columbia Circuit.
Jan. 15, 1973.
Mr. Wallace L. Duncan, Washington, D. C. (appointed by this Court), was on the brief for appellant.
Mr. Harold H. Titus, Jr., U. S. Atty., Messrs. John A. Terry and James A. Fitzgerald, Asst. U. S. Attys., were on the brief for appellee.
Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and HARRISON WINTER , United States Circuit Judge for the Fourth Circuit.
Sitting by designation pursuant to Title 28, U.S.C. § 291 (a).
PER CURIAM:
On this appeal from unlawful possession of a firearm, the central issue is the reasonableness of the seizure of the sawed-off shotgun in appellant’s hotel room. The pertinent facts that emerged at the hearing, on the appellant’s motion to suppress, developed that on July 30, 1970, at approximately 9 a. m., the manager of the Franklin Park Hotel noticed that the phone in room 642 (appellant’s room) was off the hook, and dispatched a bellman there to replace the receiver. The bellman entered the room with a pass key, and in looking for the telephone, which was obscured by a newspaper, 'he observed a sawed-off shotgun lying on a night table. This was reported to the manager, who notified the police. The police went to the hotel, without a search warrant, and on arrival there, about 10 a. m., were admitted to the room by the management. They observed the gun, checked it, removed a live shell and replaced the weapon on the table.
When appellant entered the room, at about 11:20 a. m., he was arrested.
The District Court ruled that the failure to obtain a warrant was justified by the exigency and circumstances, and by the fact that, this being a transient hotel, the police reasonably concluded that they had to act quickly to avoid losing the evidence that was available. Although a warrantless entry is prima facie unreasonable under the Fourth Amendment, a warrant is not required in the case of exigent circumstances, and the court must look to the facts of the particular case to determine whether there was the requisite exigency. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970, en banc).
Dorman set forth a number of pertinent factors. The case at bar did not involve a “complacent” crime but rather a grave offense which, if not a crime of violence strictly speaking, obviously posed a danger to the community. There was strong probable cause to believe that a crime had been committed by the occupant of the room, see 22 D.C.Code 3214, 26 U.S.C. 5861(d), even though there was a possibility that a justification for possession of such a weapon might be established. The entry by the police detectives was peaceful, and during the day, and had been preceded by entries by the hotel staff. While a hotel room is entitled to privacy, the police were entitled to take into account that what was involved was a nonresident of the District of Columbia who had recently checked into a transient hotel, and, again, that this was a sawed-off shotgun, an ominous threat in and itself, cf. Epperson v. United States, 125 U.S.App.D.C. 303, 371 F.2d 956 (1967). Under these circumstances we find the entry and seizure valid.
We turn to appellant’s complaint of his conviction on the first count. We think this conviction is infirm and should be vacated, though not precisely for the reasons stated by appellant. However, this contention has no practical effect, since there were concurrent sentences on the first and second counts, to 2-6 years, to serve 6 months and the balance suspended, 3 years probation. And we do not think the interest of justice requires remand for resentencing on the second count.
The difficulty with Count 1 is that it charges that appellant violated 26 U.S.C. § 5861(c) and § 5871 by a knowing possession of a firearm that was made without the filing of an application to the Secretary of the Treasury as required by 26 U.S.C. § 5822. The problem is that 26 U.S.C. § 5861(c), as amended in 1968, prohibits possession of a firearm “made in violation of the provisions of this” act, and we see no proof to that effect. The Government’s Exhibit 2 is a certificate of the Treasury Department that the firearm described (by serial number, inter alia) was not “registered to, or * * * acquired by lawful making, transfer or importation by Charles (NMN) McKinney.” This was probative as to Count 2, which charges a knowing possession, in violation of 26 U.S.C. § 5861(d) and 5871, of a shotgun not registered in the National Firearms Registration and Transfer Record. But the Treasury Certificate has been asked to do additional duty, to prove a violation of 26 U.S.C. § 5861(c), for which it was not designed. We hurry by the question whether the notation on this certificate describing the firearm as showing “Crescent Firearms Co., Norwich, Conn. U.S.A. (Stamped on the receiver)” is sufficient proof that the firearm was made in the United States (rather than imported), because, in any event, it is plainly insufficient to show that the firearm was unlawfully made by Crescent Firearms Co. For all that is certified by the Treasury Department, it might well have been lawfully made by Crescent Firearms Co., but thereafter unlawfully transferred to appellant, which would make his receipt and possession a violation of subsection (b)— but not (c)— of 26 U.S.C. § 5861. The only other pertinent evidence in the record is the Government’s introduction of the statement of appellant that he bought the firearm from persons unknown on the 14th Street Strip for self-protection (Tr. 30).
The judgment is vacated as to count 1, and affirmed as to count 2.
So ordered.
. The circumstances are critically different from those in Page v. United States, 282 F.2d 807 (8th Cir. 1960), relied on by appellant. That case involved (a) an entry into Page’s home, (b) made the morning of February 11, after the sawed-off shotgun had been observed on February 10(c) which was sought to be justified as incident to an arrest made outside the home.
. The uncontradicted testimony of the police officer that defendant was advised of his rights before he was asked any questions disposes of appellant’s claim under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genresp1
|
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.
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.
Louis FLANAGAN, Petitioner-Appellant, v. C. Murray HENDERSON, Respondent-Appellee.
No. 73-2451.
United States Court of Appeals, Fifth Circuit.
July 12, 1974.
James E. Franklin, Jr., Shreveport, La., for petitioner-appellant.
William J. Guste, Atty. Gen., Baton Rouge, La., Thomas A. Self, Dist. Atty., Parish of DeSoto, Many, La., LeRoy A. Hartley, Sp. Counsel, and Asst. Atty. Gen. of La., New Orleans, La., for respondent-appellee.
Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
CLARK, Circuit Judge:
Louis Flanagan was convicted by a jury in the 11th Judicial District Court of the State of Louisiana of aggravated rape and was sentenced to life imprisonment. His right of direct appeal to the Supreme Court of Louisiana was substantially harmed, if not effectively thwarted, by the failure of one of his two retained counsel to perfect an appeal on the basis of the numerous Bills of Exception taken during the trial court proceedings. The effect of this failure was to limit the appeal record to the minute entries made by the trial court clerk. The Supreme Court of Louisiana affirmed his conviction with one justice dissenting. When Flanagan initially sought federal habeas corpus relief, he was required to exhaust his state habeas corpus remedy. He did so and then reasserted the present action in the court below, which denied him relief. On the present appeal Flanagan asserts: (1) denials of due process, in the prosecution’s refusal to produce several items of exculpatory evidence and the trial judge’s refusal to sequester the prosecuting witness; (2) deprivation of effective counsel because of the failure of his retained attorneys timely to perfect a meaningful appeal from his conviction; and (3) procedural error by the federal habeas court in denying him an evidentiary hearing. Agreeing with the last contention, we vacate the order denying the writ and remand.
Both the state and federal habeas proceedings were based upon the record generated by the State trial court. This consists of three volumes which contain pleadings, minute entries by the State district court clerk, various orders entered by the State trial judge and a series of abbreviated excerpts from the court reporter’s notes which relate to the 108 Bills of Exception assigned during pre and post trial proceedings and during the trial itself.
The particular evidentiary deprivations that Flanagan asserts as violative of due process are as follows: the refusal to allow pretrial study by an expert employed by defendant of a latent fingerprint taken from the prosecutrix’s automobile (in which the rape took place); the assertion of a State law privilege to thwart the disclosure of an investigative report prepared by the corporation that employed both the prosecutrix and Louis Brooks, the person she originally accused of this crime; the refusal, under a similar claim of privilege, to produce an affidavit given by the prosecutrix charging Brooks with the rape, despite testimony by the prosecutrix that she had not made such an implicating statement or affidavit; and finally, the unavailability of a sample of sperm taken by the parish coroner from the body of the prosecutrix on the night of the crime.
In denying relief without a hearing, the court below found the record disclosed that one of the attorneys who had represented Flanagan during his trial had previously represented Louis Brooks when he was suspected of the crime; and that the prosecutrix had been subject to full cross-examination as to the facts and circumstances surrounding her initial misidentification and all factors related to her present identification of Flanagan. Additionally it found that the prosecution’s refusals to furnish the items of information sought prior to trial were not prejudicial, did not amount to a deprivation of constitutional right and, if error, were harmless. The court further found the record before it disclosed that the prosecutor did not withhold any evidence favorable to petitioner prior to or during the trial and that the petitioner knew all of the information he sought to acquire.
If, as alleged by Flanagan, the prosecution deliberately kept from his attorneys evidence in its possession which was favorable to his acquittal, a denial of due process has resulted. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Guerrero v. Beto, 384 F.2d 886 (5th Cir. 1967); Annotation: Withholding or Suppression of Evidence By Prosecution, 34.A.L.R.3d 16. Since the record before us does not contain the affidavit of the prosecutrix, the challenged fingerprint, the report of the employer or more than brief excerpts from the testimony of the prosecutrix, the coroner or any other witness who appeared at the trial, there is no factual basis upon which to judge whether the allegations are well taken or not.
In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1973), the Court stated:
Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
See also 28 U.S.C. § 2254(d).
It well may be that the entire record transcript of the State trial is still available and that it alone will afford a fact finding procedure which is adequate to afford a full and fair hearing. However, no such transcript is now a part of the record in this cause and no fair appraisal of the reliability of the resolutions of those fact issues which have been developed by the petition can be made from the bits and pieces of the trial transcript which formed the record examined by the court below. Such a record is inadequate. Flores v. Estelle, 492 F.2d 711 (5th Cir. 1974). The court did not have before it the testimony of those who could accurately describe the facts. Cf. Swanson v. Estelle, 492 F.2d 115 (5th Cir. 1974).
Notwithstanding his undoubted good faith, the prosecutor’s unsupported assertion that the items sought were not exculpatory is no answer. Nor is it sufficient for counsel to describe the proof as totally overwhelming where the whole record is not presented. Similarly, the assertion by the prosecutor that the item sought is privileged under State law cannot end the inquiry into a defendant’s constitutional right to its production or disclosure. If the supplementary record developed after remand does not conclusively establish its character or the lack of defendant’s need for it in his defense, such physical evidence —which the petitioner has never seen-— must be subjected to an in camera examination by the court. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799 (1969).
On remand, the district court must require the production of a record which will furnish a reliable basis for resolving the disputed issues of fact. The extent to which further evidentiary proceedings in that court will be required depends upon the availability of the trial transcript and the use of other fact development procedures, the precise course of which is left to the district court.
Since the cause must go back for additional fact development, we consider it appropriate to comment on an issue which is bound to recur. While the result of the default of Flanagan’s counsel in perfecting a meaningful appeal has become final under. Louisiana law — an appeal on a record limited to clerical notations^ — -it is not final as a matter of Sixth Amendment right.
If an appointed counsel should altogether fail to take an appeal which a defendant requests, precedent in this circuit establishes that such neglect amounts to ineffectiveness per se. See Bailey v. Ault, 490 F.2d 71 (5th Cir. 1974); and the cases discussed in Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971). Appointed counsel error which leaves a defendant with only an abbreviated right of review has also been held to deny a constitutional right. Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967). Although the standard by which minimal competence of retained counsel is to be judged is similar, any errors of Flanagan’s privately employed counsel cannot be automatically charged to the state. However, since the default of one of his attorneys in properly perfecting a full appeal was promptly made known to the trial judge in the form of a request for extension of time to perfect a regular appeal, state involvement unquestionably is present here. When a court discovers that an attorney has been derelict in the performance of a court duty which could forfeit a legal right accorded to a defendant in a criminal case is significant as the right to an appeal on the merits, disciplinary measures against the attorney — rather than deprivation of the defendant’s rights — may be the only constitutional remedy. At least that is true in this case. Therefore, the district court must include in the record developed sufficient information to demonstrate whether the defendant personally waived his right to appeal upon a record comprised of his Bills of Exception. The right to this form of appeal, which had been fully perfected throughout the trial proceedings (and which the State, through court and prosecutor, knew had been so perfected) is one which his retained attorneys cannot waive for him. Collier v. Estelle, 488 F.2d 929 (5th Cir. 1973).
The trial judge’s discretionary action in permitting the prosecutrix to remain in the courtroom during the trial does not appear to present an issue of constitutional dimensions.
The cause is remanded to the district court for further proceedings not inconsistent with this opinion.
Remanded.
. State v. Flanagan, 254 La. 100, 222 So.2d 872 (1969).
. In addition to these Bills of Exception, counsel for petitioner filed more than ,30 motions for various forms of pre and post trial relief. These motions and all orders thereon also form a part of this record.
. La.Rev.Stat. § 44:3 (1940).
. During the prosecution’s case the coroner testified that in the course of his examination of the prosecutrix on the night of the rape a sample of male sperm had been taken from her vagina. On cross-examination the coroner stated he did not know whether such a sample could reveal the blood type of the rapist but promised to consult others and testify later. He subsequently informed the court that such typing was medically possible but that he could not locate the sample.
. Brooks, who was arrested shortly after the rape was reported, remained in Parish prison for over one month before petitioner was accused.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_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.
ALLEGHANY CORPORATION v. BRESWICK & CO. et al.
No. 616.
Decided January 27, 1958.
Whitney North Seymour, David Hartfield, Jr. and Edward K. Wheeler for appellant in No. 616.
Harold H. Levin, Joseph M. Proskauer, Marvin E. Frankel and Allen L. Feinstein for appellants in No. 617.
Robert W. Ginnane for appellant in No. 618.
Edward M. Garlock filed a motion for Baker, Weeks & Co. et al. for leave to join in the Jurisdictional Statements and Applications for Summary Reversal filed by appellants in Nos. 616 and 617.
George Brussel, Jr. for Breswick & Co. et al., appellees.
Together with No. 617, Gruss et al. v. Breswick & Co. et al., and No. 618, Interstate Commerce Commission v. Breswick & Co. et al., also on appeals from the same Court.
Per Curiam.
The judgment of the District Court is reversed and the case is remanded for consideration by that court of the only claim that was left open at this Court’s prior disposition of this litigation, to wit, whether “the preferred stock issue as approved by the [Interstate Commerce] Commission was in violation of the Interstate Commerce Act.” Alleghany Cory. v. Breswick & Co., 353 U. S. 151, 175.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
LOCAL NO. 1903 OF the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW; Gary Swanson, President of Local No. 1903; Jack Harney, Recording Secretary of Local No. 1903; Joan Rasmussen, Vice President of Local No. 1903; William Wolfenbarger, Secretary and Treasurer of Local No. 1903; John Doe and Mary Doe, Members of Local No. 1903, et al., Plaintiffs-Appellants, v. BEAR ARCHERY, Division of Victor Comptometer Corporation; Robert F. Kelly, President of Bear Archery, Division of Victor Comptometer; Nelson A. Miles, Attorney for Defendant Bear Archery, Defendant City of Grayling, Defendant Chief of Police Stephan, and Defendant City Police Department; Peter Stephan, individually and as Chief of Police, City of Grayling, Michigan; City of Grayling, Michigan; Harold Hatfield, Jr., individually and as Sheriff of Crawford County, Michigan; Crawford County Sheriff Department; John B. Huss, individually and as County Prosecutor, County of Crawford, Michigan; and Crawford County, Michigan, Defendants-Appellees.
No. 78-1012.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 30, 1980.
Decided March 6, 1980.
William Rastetter, Cedar, Mich., James M. Olson, Traverse City, Mich., Robert A. Hess, Roscommon, Mich., Leonard R. Page, Detroit, Mich., L. Kent Walton, Traverse City, Mich., Alan V. Reuther, Asst. Gen. Counsel, Detroit, Mich., for plaintiffs-appellants.
Douglas J. Read, Williams, Coulter, Cunningham, Davison & Read, Traverse City Mich., for Crawford Co.
Richard W. Ford, Running, Wise & Wilson, Robert E. Kuhn, Traverse City, Mich., for Grayling Co.
Before EDWARDS, Chief Judge, KEITH, Circuit Judge, and WISEMAN, District Judge.
Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.
PER CURIAM.
This appeal is taken from a District Court’s judgment dismissing a civil rights action brought pursuant to 28 U.S.C. § 1331(a) (1976), claiming a right to relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 (1976), as well as the Fifth and Fourteenth Amendments to the Constitution of the United States.
The underlying dispute grows out of asserted collective bargaining rights on the part of plaintiff, Local No. 1903 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (henceforth UAW) which asserted rights were denied by defendant, Bear Archery, Division of Victor Comptometer Corporation (henceforth Bear Archery). The dispute in question resulted in a strike which served to divide the City of Grayling, Michigan and the County of Crawford in bitter controversy. At the aftermath of the strike, the UAW filed the instant complaint, alleging (among other things):
Defendants herein under color of law have by act or neglect deprived Plaintiffs of their constitutionally and federally protected rights of speech, picketing, sign communication or other forms of communicative or informational expression; or Defendants have by act or neglect chilled the exercise of such rights and privileges; the acts or neglect or omissions consist of in part the following:
Following the paragraph just quoted above, plaintiff-appellant recited (in 20 separate paragraphs) a variety of asserted actions on the part of city and county officials which they rely on as constituting injury.
The District Judge in the Eastern District of Michigan who heard this case held that defendants Crawford County, Crawford County Sheriff Department, City of Grayl-ing and City of Grayling Police Department are absolutely immune from suit under 42 U.S.C. § 1983 (1976):
Said defendants are not persons under 42 USC 1983, and no cause of action can be found against them unless they are subject to having liability imposed vicariously under the doctrine of respondeat superior. However, this doctrine also does not apply to suits under 42 USC 1983.
After the District Judge’s decision in this case, the Supreme Court of the United States decided Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1958). In a lengthy analysis the Supreme Court overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to the extent that it was inconsistent with the holdings in Monell, supra. In the opinion of the Court, the Supreme Court stated:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970): “Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We begin with the language of § 1983 as passed:
u[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . 17 Stat. 13 (emphasis added).
The italicized language plainly imposes liability on a government that, under col- or of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.
See Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976).
Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, The Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e. g., id., § 26.5; Prosser, supra, at 459.
The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon [the Sherman amendment] as a punishment . . . . It is a mutual insurance.” Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.
Monell v. New York City Department of Social Services, 436 U.S. at 690-695, 98 S.Ct. at 2035-2038.
Under these circumstances, we vacate the judgment of the District Court previously referred to and remand for further consideration of this case under the standards quoted above of Monell v. New York City Department of Social Services, supra.
There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Milliken v. Bradley, 433 U.S. 267, 291 [97 S.Ct. 2749, 2762, 53 L.Ed.2d 745] (1977); see Ex parte Virginia, 100 U.S., [339] at 347-348 [25 L.Ed. 676], For this reason, National League of Cities v. Usery, 426 U.S. 833 [96 S.Ct. 2465, 49 L.Ed.2d 245] (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 [96 S.Ct. 2666, 2671, 49 L.Ed.2d 614] (1976); Lincoln County v. Luning, 133 U.S. 529, 530 [10 S.Ct. 363, 33 L.Ed. 766] (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes.
Since official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent — at least where Eleventh Amendment considerations do not control analysis — our holding today that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are “persons” under § 1983 in those cases in which, as here, a local government would be suable in its own name.
See also Mr. Justice Frankfurter’s statement for the Court in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 [60 S.Ct. 968, 972, 84 L.Ed. 1254] (1940):
“It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.”
Support for such a conclusion can be • found in the legislative history. As we have indicated, there is virtually no discussion of § 1 of the Civil Rights Act. Again, however, Congress’ treatment of the Sherman amendment gives a clue to whether it would have desired to impose respondeat superior liability.
The primary constitutional justification for the Sherman amendment was that it was a necessary and a proper remedy for the failure of localities to protect citizens as the Privileges or Immunities Clause of the Fourteenth Amendment required. See supra, at 670-673. And according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. See Globe 761 (Sen. Sherman); id., at 756 (Sen. Edmunds); id., at 751-752 (Rep. Shellabarger). But other proponents of the amendment apparently view it as a form of vicarious liability for the unlawful acts of the citizens of the locality. See id., at 792 (Rep. Butler). And whether intended or not, the amendment as drafted did impose a species of vicarious liability on municipalities since it could be construed to impose liability even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it. Indeed, the amendment held a municipality liable even if it had done everything in its power to curb the riot. See supra, at 668; Globe 761 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 788 (Rep. Kerr); id., at 791 (Rep. Willard). While the first conference substitute was rejected principally on constitutional grounds, see id., at 804 (Rep. Poland), it is plain from the text of the second conference substitute — which limited liability to those who, having the power to intervene against Ku Klux Klan violence, “neglect[ed] or refuse[d] so to do,” see Appendix to this opinion, infra, at 704, and which was enacted as § 6 of the 1871 Act and is now codified as 42 U.S.C. § 1986 — that Congress also rejected those elements of vicarious liability contained in the first conference substitute even while accepting the basic principle that the inhabitants of a community were bound to provide protection against the Ku Klux Klan. Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality’s employees. Nonetheless, when Congress’ rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong.
A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of respondeat superior, see, e. g., 2 F. Harper & F. James, § 26.3, is that liability follows the right to control the actions of a tortfeasor. By our decision in Rizzo v. Goode, 423 U.S. 362 [, 96 S.Ct. 598, 46 L.Ed.2d 561] (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See id., at 370-371 [, 96 S.Ct. at 602].
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_appel1_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 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").
David C. MEYERS, et al., Plaintiffs, Charles C. Deacy, Chief of the Receivership Division, Department of Insurance, State of Alabama, Plaintiff-Appellee, v. Shearn MOODY, Jr., Defendant-Appellant.
No. 83-1332
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 23, 1984.
W. Briscoe Swan, Houston, Tex., for defendant-appellant.
Wright & Patton, William E. Wright, Houston, Tex., James W. Webb, Montgomery, Ala., for plaintiff-appellee.
Robert L. Blumenthal, Mark S. Werbner, Jonathan Thalheimer, Dallas, Tex., for Ward.
Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Shearn Moody, Jr. brings this interlocutory appeal challenging the district court’s issuance of a preliminary injunction restraining him from “secreting, moving, disposing of, hypothecating, wasting, dissipating or transferring” any assets pending efforts by the appellee to satisfy a judgment won against Moody more than three and a half years ago. Moody asserts that the preliminary injunction is not supported by the evidence before the district court and that the wording of the injunction is ambiguous and overly broad.
The granting of a preliminary injunction rests in the sound discretion of the district court, and will be overturned only on a showing of abuse of that discretion. Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 303 (5th Cir.1982); Foley v. Alabama State Bar, 648 F.2d 355 (5th Cir.1981). The factual findings made here by the district court are amply supported by evidence advanced by the appellee. Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725, 728 (Tex.Civ.App.1974). Moody’s activities since the institution of this lawsuit must engender some suspicion that he is attempting to place assets beyond the reach of his judgment creditor. Under these circumstances, no abuse of discretion appears in the issuance of the preliminary injunction. Moody’s assertion that his financial transactions, though legitimate, are too complex to be understood by appellee and, implicitly, by the district court, requires no response.
The preliminary injunction order issued by the district court meets the specificity requirements of Fed.R.Civ.P. 65(d). The judgment against Moody which appellee seeks to execute exceeds the aggregate value of Moody’s reported assets; consequently it is appropriate for the preliminary injunction to extend to all of Moody’s assets. Any waste, dissipation, or transfer of assets by Moody has a direct impact on appellee’s potential ultimate recovery. See Carter v. City of Houston, 255 S.W.2d 336, 338 (Tex.Civ.App.1953). A similar preliminary injunction was recently upheld by the Sixth Circuit in USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982).
Moody complains that the preliminary injunction makes no exemption for living expenses and day-to-day business transactions. The trial judge orally assured Moody that ordinary living expenses were not a subject of the injunction, and we are satisfied that Moody faces no threat of contempt on this account. As to everyday business expenses, we must read the trial court’s failure to exempt them from the order to mean that Moody is prohibited from moving or expending any funds for business purposes. In light of the facts that Moody is evidently not engaged in any traditional business and that all of his reported assets are subject to the appellee’s execution of judgment, even so strict a preliminary injunction does not constitute an abuse of discretion. If Moody can establish that his normal business activities will effect no diminution of the assets available to satisfy the judgment, he is free to move the trial court for modification of the preliminary injunction, something he has not done thus far.
AFFIRMED. Costs to be borne by Appellant.
. This question was placed explicitly before the district court at the preliminary injunction hearing, and counsel for appellee urged the court not to exempt such expenses:
THE COURT: All right. What about the exempting transactions in the ordinary course of business?
MR. BLUMENTHAL: Your Honor, I think that there really ought not to be any ordinary course of business at this point except for living expenses. We have an eleven million dollar Judgment and execution ought — it’s a six million dollar Judgment with interest, it’s now in excess of eleven million dollars.
In view of this exchange we cannot suppose that the failure to exempt business expenses was accidental.
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:
|
sc_lcdisposition
|
C
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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.
JINKS v. RICHLAND COUNTY, SOUTH CAROLINA, et al.
No. 02-258.
Argued March 5, 2003
Decided April 22, 2003
Scalia, J., delivered the opinion for a unanimous court. Souter, J., filed a concurring opinion, post, p. 467.
Robert S. Peck argued the cause for petitioner. With him on the briefs were James Mixon Griffin and Bradford P. Simpson.
Jeffrey A. Lamken argued the cause for the United States as intervenor. On the. briefs were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Clement, Malcolm L. Stewart, Mark B. Stern, and Alisa B. Klein.
Andrew F. Lindemann argued the cause for respondent Richland County. With him on the brief were William H. Davidson II and David L. Morrison.
Barbara Amwine and Thomas J. Henderson filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A Forrester, Solicitor General, Carter G. Phillips, and Gene C. Schaerr, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Mike Moore of Mississippi, Jeremiah TV (Jay) Nixon of Missouri, David Samson of New Jersey, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Charlie Condon of South Carolina, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Jerry TV Kilgore of Virginia; and for the Council of State Governments et al. by Richard Ruda and James I. Crowley.
Justice Scalia
delivered the opinion of the Court.
The Supreme Court of South Carolina dismissed petitioner’s lawsuit against Richland County (hereinafter respondent) as time barred. In doing so it held that 28 U. S. C. § 1367(d), which required the state statute of limitations to be tolled for the period during which petitioner’s cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State’s political subdivisions. The issue before us is the validity of that constitutional determination.
HH
£>
When a federal district court has original jurisdiction over a civil cause of action, § 1867 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III “ease or controversy.” Section 1367(a) provides:
“Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”
As the introductory clause suggests, not every claim within the same “case or controversy” as the claim within the federal courts’ original jurisdiction will be decided by the federal court; §§ 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Section 1367(c), for example, states:
“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
“(1) the claim raises a novel or complex issue of State law,
“(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
“(3) the district court has dismissed all claims over which it has original jurisdiction, or
“(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”
Thus, some claims asserted under § 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be refiled in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts:
“The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
B
On October 14,1994, Carl H. Jinks was arrested and jailed for failure to pay child support. Four days later, while confined at respondent’s detention center, he died of complications associated with alcohol withdrawal. In 1996, within the applicable statute of limitations, petitioner Susan Jinks, Carl Jinks’s widow, brought an action in the United States District Court for the District of South Carolina against respondent, its detention center director, and its detention center physician. She asserted a cause of action under Rev. Stat. § 1979, 42 U. S. C. § 1983, and also supplemental claims for wrongful death and survival under the South Carolina Tort Claims Act. See S. C. Code Ann. §15-78-10 et seq. (West Supp. 2002). On November 20, 1997, the District Court granted the defendants’ motion for summary judgment on the § 1983 claim, and two weeks later issued an order declining to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice pursuant to 28 U. S. C. § 1367(c)(3).
On December 18,1997, petitioner filed her wrongful-death and survival claims in state court. After the jury returned a verdict of $80,000 against respondent on the wrongful-death claim, respondent appealed to the South Carolina Supreme Court, which reversed on the ground that petitioner’s state-law claims were time barred. Although they would not have been time barred under § 1367(d)’s tolling rule, the State Supreme Court held that § 1367(d) was unconstitutional as applied to claims brought in state court against a State’s political subdivisions, because it “interferes with the State’s sovereign authority to establish the extent to which its political subdivisions are subject to suit.” 349 S. C. 298, 304, 563 S. E. 2d 104, 107 (2002).
We granted certiorari, 537 U. S. 972 (2002).
K
>
Respondent and its amici first contend that § 1367(d) is facially invalid because it exceeds the enumerated powers of Congress. We disagree. Although the Constitution does not expressly empower Congress to toll limitations periods for state-law claims brought in state court, it does give Congress the authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress’s Article I, §8,] Powers and all other Powers vested by this Constitution in the Government of the United States . . . .” Art. I,. §8, cl. 18. The enactment of § 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period; nor is this the first case in which we have ruled on its authority to do so. In Stewart v. Kahn, 11 Wall. 493 (1871), we upheld as constitutional a federal statute that tolled limitations periods for state-law civil and criminal cases for the time during which actions could not be prosecuted because of the Civil War. We reasoned that this law was both necessary and proper to carrying into effect the Federal Government’s war powers, because it “remedied] the evils” that had arisen from the war. “It would be a strange result if those in rebellion, by protracting the conflict, could thus rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences.” Id., at 507.
Of course § 1367(d) has nothing to do with the war power. We agree with petitioner and intervenor United States, however, that § 1367(d) is necessary and proper for carrying into execution Congress’s power “[t]o constitute Tribunals inferior to the supreme Court,” U. S. Const., Art. I, § 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise “[t]he judicial Power of the United States,” Art. III, §1. As to “necessity”: The federal courts can assuredly exist and function in the absence of § 1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be “‘absolutely necessary’ ” to the exercise of an enumerated power. See McCulloch v. Maryland, 4 Wheat. 316, 414-415 (1819). Rather, it suffices that § 1367(d) is “conducive to the due administration of justice” in federal court, and is “plainly adapted” to that end, id., at 417, 421. Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre-§ 1367(d) world, they had three basic choices: First, they could condition dismissal of the state-law claim on the defendant’s waiver of any statute-of-limitations defense in state court. See, e. g., Duckworth v. Franzen, 780 F. 2d 645, 657 (CA7 1985); Financial General Bankshares, Inc. v. Metzger, 680 F. 2d 768, 778 (CADC 1982). That waiver could be refused, however, in which case one of the remaining two choices would have to be pursued. Second, they could retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court. See Newman v. Burgin, 930 F. 2d 955, 963-964 (CA1 1991) (collecting cases). That would produce an obvious frustration of statutory policy. And third, they could dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred. See, e. g., Rheaume v. Texas Dept. of Public Safety, 666 F. 2d 925, 932 (CA5 1982). That was obviously inefficient. By providing a straightforward tolling rule in place of this regime, § 1367(d) unquestionably promotes fair and efficient operation of the federal courts and is therefore conducive to the administration of justice.
And it is conducive to the administration of justice for another reason: It eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal- and state-law claims that “derive from a common nucleus of operative fact,” Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966). Prior to enactment of § 1367(d), they had the following unattractive options: (1) They could file a single federal-court action, which would rim the risk that the federal court would dismiss the state-law claims after the limitations period had expired; (2) they could file a single state-law action, which would abandon their right to a federal forum; (3) they could file separate, timely actions in federal and state court and ask that the state-court litigation be stayed pending resolution of the federal case, which would increase litigation costs with no guarantee that the state court would oblige. Section 1367(d) replaces this selection of inadequate choices with the assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court.
We are also persuaded, and respondent does not deny, that § 1367(d) is “plainly adapted” to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted § 1367(d) as a “pretext” for “the accomplishment of objects not entrusted to the [federal] government,” McCulloch, supra, at 423, nor is the connection between § 1367(d) and Congress’s authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, § 8, cf. United States v. Lopez, 514 U. S. 549, 567-568 (1995); United States v. Morrison, 529 U. S. 598, 615 (2000).
Respondent and its amici further contend, however, that § 1367(d) is not a “proper” exercise of Congress’s Article I powers because it violates principles of state sovereignty. See Printz v. United States, 521 U. S. 898, 923-924 (1997). Respondent views § 1367(d)’s tolling rule as a regulation of state-court “procedure,” and contends that Congress may not, consistent with the Constitution, prescribe procedural rules for state courts’ adjudication of purely state-law claims. See, e. g., Bellia, Federal Regulation of State Court Procedures, 110 Yale L. J. 947 (2001); Congressional Authority to Require State Courts to Use Certain Procedures in Products Liability Cases, 13 Op. Off. Legal Counsel 372, 373-374 (1989) (stating that “potential constitutional questions” arise when Congress “attempts to prescribe directly the state court procedures to be followed in products liability cases”). Assuming for the sake of argument that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is “proper,” between federal laws that regulate state-court “procedure” and laws that change the “substance” of state-law rights of action, we do not think that state-law limitations periods fall into the category of “procedure” immune from congressional regulation. Respondent’s reliance on Sun Oil Co. v. Wortman, 486 U. S. 717 (1988), which held a state statute of limitations to be “procedural” for purposes of the Full Faith and Credit Clause, is misplaced. As we noted in that very case, the meaning of “‘substance’” and “‘procedure’” in a particular context is “largely determined by the purposes for which the dichotomy is drawn.” Id., at 726. For purposes of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), for example, statutes of limitations are treated as substantive. Guaranty Trust Co. v. York, 326 U. S. 99 (1945). Stewart v. Kahn, 11 Wall., at 506-507, provides ample support for the proposition that — if the substance-procedure dichotomy posited by respondent is valid — the tolling of limitations periods falls on the “substantive” side of the line. To sustain § 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts.
We therefore reject respondent’s contention that § 1367(d) is facially unconstitutional.
B
Respondent next maintains that § 1367(d) should not be interpreted to apply to claims brought against a State’s political subdivisions. We find this contention also to be without merit.
The South Carolina Tort Claims Act, S. C. Code Ann. § 15-78-10 et seq. (West Supp. 2002), confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent’s view, § 1367(d)’s extension of the time period in which a State’s political subdivisions may be sued constitutes an impermissible abrogation of “sovereign immunity.” That is not so. Although we have held that Congress lacks authority under Article I to override a State’s immunity from suit in its own courts, see Alden v. Maine, 527 U. S. 706 (1999), it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see id., at 756. Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on “state sovereignty” than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State’s authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on “state sovereignty,” but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.
Nor do we see any reason to construe § 1367(d) not to apply to claims brought against a State’s political subdivisions absent an “unmistakably clear” statement of the statute’s applicability to such claims. Although we held in Raygor v. Regents of Univ. of Minn., 534 U. S. 533 (2002), that § 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise “serious constitutional doubt” in light of our decisions protecting a State’s sovereign immunity from congressional abrogation, id., at 543. As we have just explained, however, no such constitutional doubt arises from holding that petitioner’s claim against respondent — which is not a State, but a political subdivision of a State — falls under the definition of “any claim asserted under subsection (a).” § 1367(d) (emphasis added). In any event, the idea that an “unmistakably clear” statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), that municipalities are subject to suit as “persons” under § 1983.
* * *
The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
See, e. g., Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U. S. C. App. § 525 (“The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court... by or against any person in military service”); 42 U. S. C. § 9658(a)(1) (“In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute”); 11 U. S. C. § 108(c) (“Except as provided in section 524 of this title, if applicable nonbankruptcy law .. . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the ease; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922,1201, or 1301 of this title, as the case may be, with respect to such claim”).
This was Chief Justice Marshall’s description in McCulloch of why— by way of example — legislation punishing perjury in the federal courts is valid under the Necessary and Proper Clause. See 4 Wheat., at 417.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_issuearea
|
H
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
VERIZON COMMUNICATIONS INC. et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 00-511.
Argued October 10, 2001 —
Decided May 13, 2002
William, P. Barr argued the cause for Verizon Communications, Inc., et al., petitioners in No. 00-511, and for BellSouth Corp. et al., respondents in Nos. 00-555, etc. With him on the briefs were M. Edward Whelan, Patrick F. Philbin, Michael E. Glover, Mark L. Evans, Michael K. Kellogg, Henk Brands, Charles R. Morgan, James G. Harralson, Andrew G. McBride, Scott Delacourt, Roger K. Toppins, Gary Phillips, Sean A. Lev, and Steven G Bradbury.
Solicitor General Olson argued the cause for the federal parties, petitioners in Nos. 00-587, etc., and respondents in No. 00-511. With him on the briefs were Acting Solicitor General Underwood, Acting Assistant Attorney General Nannes, Deputy Solicitor General Wallace, Barbara McDowell, Catherine G. O’Sullivan, Nancy C. Garrison, and Laurence N. Bourne. David P. Murray filed briefs for respondent Sprint Corporation in Nos. 00-511, etc., in support of petitioner federal parties and in opposition to petitioners Verizon Communications, Inc., et al.
Donald B. Verrilli, Jr., argued the cause for WorldCom, Inc., et al., petitioners in No. 00-555 and respondents in No. 00-511, and for AT&T Corp., petitioner in No. 00-590 and respondent in Nos. 00-511, etc. With him on the briefs for WorldCom, Inc., et al. were Jodie L. Kelley, Ian Heath Gershengorn, Thomas F. O’Neil III, William Single IV, Carol Ann Bischoff, Robert M. McDowell, and Robert J. Aamoth. David W. Carpenter, Peter D. Keisler, Stephen B. Kinnaird, C. Frederick Beckner III, and Mark C. Rosen-blum filed briefs for AT&T.
Briefs for respondents in Nos. 00-511, etc., were filed by Irwin A. Popowsky for the National Association of State Utility Consumer Advocates, by James Bradford Ramsay and Lawrence G. Malone for the Public Service Commission of New York et al., and by William T. Lake, John H. Har- wood II, and Robert B. McKennna for Qwest Communications International, Inc.
Together with No. 00-555, WorldCom, Inc., et al. v. Verizon Communications Inc. et al., No. 00-587, Federal Communications Commission et al. v. Iowa Utilities Board et al., No. 00-590, AT&T Corp. v. Iowa Utilities Board et al., and No. 00-602, General Communications, Inc. v. Iowa Utilities Board et al., also on certiorari to the same court.
Harisha J. Bastiampillai and Morton J. Posner filed a brief for Allegiance Telecom, Inc., et al. as amici curiae urging affirmance in No. 00-511.
Justice Souter
delivered the opinion of the Court.
These cases arise under the Telecommunications Act of 1996. Each is about the power of the Federal Communications Commission to regulate a relationship between monopolistic companies providing local telephone service and companies entering local markets to compete with the incumbents. Under the Act, the new entrants are entitled, among other things, to lease elements of the local telephone networks from the incumbent monopolists. The issues are whether the FCC is authorized (1) to require state utility commissions to set the rates charged by the incumbents for leased elements on a forward-looking basis untied to the incumbents’ investment, and (2) to require incumbents to combine such elements at the entrants’ request when they lease them to the entrants. We uphold the FCC’s assumption and exercise of authority on both issues.
I
The 1982 consent decree settling the Government’s antitrust suit against the American Telephone and Telegraph Company (AT&T) divested AT&T of its local-exchange carriers, leaving AT&T as a long-distance and equipment company, and limiting the divested carriers to the provision of local telephone service. United States v. American Telephone & Telegraph Co., 552 F. Supp. 131 (DC 1982), aff’d sub nom. Maryland v. United States, 460 U. S. 1001 (1983). The decree did nothing, however, to increase competition in the persistently monopolistic local markets, which were thought to be the root of natural monopoly in the telecommunications industry. See S. Benjamin, D. Lichtman, & H. Shelanski, Telecommunications Law and Policy 682 (2001) (hereinafter Benjamin et al.); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law §2.1.1, pp. 84-85 (2d ed. 1999) (hereinafter Huber et al.); W. Baumol & J. Sidak, Toward Competition in Local Telephony 7-10 (1994); S. Breyer, Regulation and Its Reform 291-292, 314 (1982). These markets were addressed by provisions of the Telecommunications Act of 1996 (1996 Act or Act), Pub L. 104-104, 110 Stat. 56, that were intended to eliminate the monopolies enjoyed by the inheritors of AT&T’s local franchises; this objective was considered both an end in itself and an important step toward the Act’s other goals of boosting competition in broader markets and revising the mandate to provide universal telephone service. See Benjamin et al. 716.
Two sets of related provisions for opening local markets •concern us here. First, Congress required incumbent local-exchange carriers to share their own facilities and services on terms to be agreed upon with new entrants in their markets. 47 U. S. C. § 251(c) (1994 ed., Supp. V). Second, knowing that incumbents and prospective entrants would sometimes disagree on prices for facilities or services, Congress directed the FCC to prescribe methods for state commissions to use in setting rates that would subject both incumbents and entrants to the risks and incentives that a competitive market would produce. § 252(d). The particular method devised by the FCC for setting rates to be charged for interconnection and lease of network elements under the Act, § 252(d)(1), and regulations the FCC imposed to implement the statutory duty to share these elements, § 251(c)(3), are the subjects of this litigation, which must be understood against the background of ratemaking for public utilities in the United States and the structure of local exchanges made accessible by the Act.
A
Companies providing telephone service have traditionally been regulated as monopolistic public utilities. See J. Bon-bright, Principles of Public Utility Rates 3-5 (1st ed. 1961) (hereinafter Bonbright); I. Barnes, Economics of Public Utility Regulation 37-41 (1942) (hereinafter Barnes). At the dawn of modern utility regulation, in order to offset monopoly power and ensure affordable, stable public access to a utility’s goods or services, legislatures enacted rate schedules to fix the prices a utility could charge. See id., at 170-173; C. Phillips, Regulation of Public Utilities 111-112, and n. 5 (1984) (hereinafter Phillips). See, e. g., Smyth v. Ames, 169 U. S. 466, 470-476 (1898) (statement of case); Munn v. Illinois, 94 U. S. 113, 134 (1877). As this job became more complicated, legislatures established specialized administrative agencies, first local or state, then federal, to set and regulate rates. Barnes 173-175; Phillips 115-117. See, e. g., Minnesota Rate Cases, 230 U. S. 352, 433 (1913) (Interstate Commerce Commission); Shreveport Rate Cases, 234 U. S. 342, 354-355 (1914) (jurisdictional dispute between ICC and Texas Railroad Commission). See generally T. Mc-Craw, Prophets of Regulation 11-65 (1984). The familiar mandate in the enabling Acts was to see that rates be “just and reasonable” and not discriminatory. Barnes 289. See, e. g., Transportation Act of 1920, 49 U. S. C. § 1(5) (1934 ed.).
All rates were subject to regulation this way: retail rates charged directly to the public and wholesale rates charged among businesses involved in providing the goods or services offered by the retail utility. Intrastate retail rates were regulated by the States or municipalities, with those at wholesale generally the responsibility of the National Government, since the transmission or transportation involved was characteristically interstate. See Phillips 143.
Historically, the classic scheme of administrative rate-setting at the federal level called for rates to be set out by the regulated utility companies in proposed tariff schedules, on the model applied to railroad carriers under the Interstate Commerce Act of 1887,24 Stat. 379. After interested parties had had notice of the proposals and a chance to comment, the tariffs would be accepted by the controlling agency so long as they were “reasonable” (or “just and reasonable”) and not “unduly discriminatory.” Hale, Commissions, Rates, and Policies, 53 Harv. L. Rev. 1103, 1104-1105 (1940). See, e. g., Southern Pacific Co. v. ICC, 219 U. S. 433, 445 (1911). The States generally followed this same tariff-schedule model. Barnes 297-298. See, e. g., Smyth, supra, at 470-476.
The way rates were regulated as between businesses (by the National Government) was in some respects, however, different from regulation of rates as between businesses and the public (at the state or local level). In wholesale markets, the party charging the rate and the party charged were often sophisticated businesses enjoying presumptively equal bargaining power, who could be expected to negotiate a “just and reasonable” rate as between the two of them. Accordingly, in the Federal Power Act of 1920,41 Stat. 1063, and again in the Natural Gas Act of 1938, 52 Stat. 821, Congress departed from the scheme of purely tariff-based regulation and acknowledged that contracts between commercial buyers and sellers could be used in ratesetting, 16 U. S. C. §824d(d) (Federal Power Act); 15 U. S. C. §717c(c) (Natural Gas Act). See United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 338-339 (1956). When commercial parties did avail themselves of rate agreements, the principal regulatory responsibility was not to relieve a contracting party of an unreasonable rate, FPC v. Sierra Pacific Power Co., 350 U. S. 348, 355 (1956) (“its improvident bargain”), but to protect against potential discrimination by favorable contract rates between allied businesses to the detriment of other wholesale customers. See ibid. Cf. New York v. United States, 331 U. S. 284, 296 (1947) (“The principal evil at which the Interstate Commerce Act was aimed was discrimination in its various manifestations”). This Court once summed up matters at the wholesale level this way:
“[WJhile it may be that the Commission may not normally impose upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain. In such circumstances the sole concern of the Commission would seem to be whether the rate is so low as to adversely affect the public interest — as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory.” Sierra Pacific Power Co., supra, at 355 (citation omitted).
See also United Gas Pipe Line Co., supra, at 345.
Regulation of retail rates at the state and local levels was, on the other hand, focused more on the demand for “just and reasonable” rates to the public than on the perils of rate discrimination. See Barnes 298-299. Indeed, regulated local telephone markets evolved into arenas of state-sanctioned discrimination engineered by the public utility commissions themselves in the cause of “universal service.” Huber et al. 80-85. See also Vietor 167-185. In order to hold down charges for telephone service in rural markets with higher marginal costs due to lower population densities and lesser volumes of use, urban and business users were charged subsidizing premiums over the marginal costs of providing their own service. See Huber et al. 84.
These cross subsidies between markets were not necessarily transfers between truly independent companies, however, thanks largely to the position attained by AT&T and its satellites. This was known as the “Bell system,” which by the mid-20th century had come to possess overwhelming monopoly power in all telephone markets nationwide, supplying local-exchange and long-distance services as well as equipment. Vietor 174-175. See also R. Garnet, Telephone Enterprise: Evolution of Bell System’s Horizontal Structure, 1876-1909, pp. 160-163 (1985) (Appendix A). The same pervasive market presence of Bell providers that made it simple to provide cross subsidies in aid of universal service, however, also frustrated conventional efforts to hold retail rates down. See Huber et al. 84-85. Before the Bell system’s predominance, regulators might have played competing carriers against one another to get lower rates for the public, see Cohen 47-50, but the strategy became virtually impossible once a single company had become the only provider in nearly every town and city across the country. This rejgulatory frustration led, in turn, to new thinking about just and reasonable retail rates and ultimately to these cases.
The traditional regulatory notion of the “just and reasonable” rate was aimed at navigating the straits between gouging utility customers and confiscating utility property. FPC v. Hope Natural Gas Co., 320 U. S. 591, 603 (1944). See also Barnes 289-290; Bonbright 38. More than a century ago, reviewing courts charged with determining whether utility rates were sufficiently reasonable to avoid unconstitutional confiscation took as their touchstone the revenue that would be a “fair return” on certain utility property known as a “rate base.” The fair rate of return was usually set as the rate generated by similar investment property at the time of the rate proceeding, and in Smyth v. Ames, 169 U. S., at 546, the Court held that the rate base must be calculated as “the fair value of the property being used by [the utility] for the convenience of the public.” In pegging the rate base at “fair value,” the Smyth Court consciously rejected the primary alternative standard, of capital actually invested to provide the public service or good. Id., at 543-546. The Court made this choice in large part to prevent “excessive valuation or fictitious capitalization” from artificially inflating the rate base, id., at 544, lest “‘[t]he public... be subjected to unreasonable rates in order simply that stockholders may earn dividends,’” id., at 545 (quoting Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 596 (1896)).
But Smyth proved to be a troublesome mandate, as Justice Brandéis, joined by Justice Holmes, famously observed 25 years later. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Serv. Comm’n of Mo., 262 U. S. 276, 292 (1923) (dissenting opinion). The Smyth Court itself had described, without irony, the mind-numbing complexity of the required enquiry into fair value, as the alternative to historical investment:
“[I]n order to ascertain [fair] value, original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property.” 169 U. S., at 546-547.
To the bewildered, Smyth simply threw up its hands, prescribing no one method for limiting use of these numbers but declaring all such facts to be “relevant.” Southwestern Bell Telephone Co., 262 U. S., at 294-298, and n. 6 (Brandeis, J., dissenting). What is more, the customary checks on calculations of value in other circumstances were hard to come by for a utility’s property; its costly facilities rarely changed hands and so were seldom tagged with a price a buyer would actually pay and a seller accept, id., at 292; West v. Chesapeake & Potomac Telephone Co. of Baltimore, 295 U. S. 662, 672 (1935). Neither could reviewing courts resort to a utility’s revenue as an index of fair value, since its revenues were necessarily determined by the rates subject to review, with the rate of return applied to the very property subject to valuation. Duquesne Light Co. v. Barasch, 488 U. S. 299, 309, n. 5 (1989); Hope Natural Gas Co., supra, at 601.
Small wonder, then, that Justice Brandéis was able to demonstrate how basing rates on Smyth’s galactic notion of fair value could produce revenues grossly excessive or insufficient when gauged against the costs of capital. He gave the example (simplified) of a $1 million plant built with promised returns on the equity of $90,000 a year. Southwestern Bell Telephone Co., supra, at 304-306. If the value were to fall to $600,000 at the time of a rate proceeding, with the rate of return on similar investments then at 6 percent, Smyth would say a rate was not confiscatory if it returned at least $36,000, a shortfall of'$54,000 from the costs of capital. But if the value of the plant were to rise to $1,750,000 at the time of the rate proceeding, and the rate of return on comparable investments stood at 8 percent, then constitutionality under Smyth would require rates generating at least $140,000, $50,000 above capital costs.
The upshot of Smyth, then, was the specter of utilities forced into bankruptcy by rates inadequate to pay off the costs of capital, even when a drop in value resulted from general economic decline, not imprudent investment; while in a robust economy, an investment no more prescient could claim what seemed a rapacious return on equity invested. Justice Brandéis accordingly advocated replacing “fair value” with a calculation of rate base on the cost of capital prudently invested in assets used for the provision of the public good or service, and although he did not live to enjoy success, his campaign against Smyth came to fruition in FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944).
In Hope Natural Gas, this Court disavowed the position that the Natural Gas Act and the Constitution required fair value as the sole measure of a rate base on which “just and reasonable” rates were to be calculated. Id., at 601-602. See also FPC v. Natural Gas Pipeline Co., 315 U. S. 575, 602-606 (1942) (Black, Douglas, and Murphy, JJ., concurring). In the matter under review, the Federal Power Commission had valued the rate base by using “actual legitimate cost” reflecting “sound depreciation and depletion practices,” and so had calculated a value roughly 25 percent below the figure generated by the natural-gas company’s fair-value methods using “estimated reproduction cost” and “trended original cost.” Hope Natural Gas, 320 U. S., at 596-598, and nn. 4-5. The Court upheld the Commission. “Rates which enable the company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed certainly cannot be condemned as invalid, even though they might produce only a meager return on the so-called ‘fair value’ rate base.” Id., at 605. Although Hope Natural Gas did not repudiate everything said in Smyth, since fair value was still “the end product of the process of rate-making,” 320 U. S., at 601, federal and state commissions setting rates in the aftermath of Hope Natural Gas largely abandoned the old fair-value approach and turned to methods of calculating the rate base on the basis of “cost.” A. Kahn, Economics of Regulations: Principles and Institutions 40-41 (1988).
“Cost” was neither self-evident nor immune to confusion, however; witness the invocation of “reproduction cost” as a popular method for calculating fair value under Smyth, see n. 5, supra, and the Federal Power Commission’s rejection of “trended original cost” (apparently, a straight-line derivation from the cost of capital originally invested) in favor of “actual legitimate cost,” Hope Natural Gas, supra, at 596. Still, over time, general agreement developed on a method that was primus inter pares, and it is essentially a modern gloss on that method that the incumbent carriers say the FCC should have used to set the rates at issue here.
The method worked out is not a simple calculation of rate base as the original cost of “prudently invested” capital that Justice Brandéis assumed, presumably by reference to the utility’s balance sheet at the time of the rate proceeding. Southwestern Bell Telephone Co., 262 U. S., at 304-306. Rather, “cost” came to mean “cost of service,” that is, the cost of prudently invested capital used to provide the service. Bonbright 173; P. Garfield & W. Lovejoy, Public Utility Economics 56 (1964). This was calculated subject to deductions for accrued depreciation and allowances for working capital, see Phillips 282-283 (table 8-1) (“a typical electric utility rate base”), naturally leading utilities to minimize depreciation by using very slow depreciation rates (on the assumption of long useful lives), and to maximize working capital claimed as a distinct rate-base constituent.
This formula, commonly called the prudent-investment rule, addressed the natural temptations on the utilities’ part to claim a return on outlays producing nothing of value to the public. It was meant, on the one hand, to discourage unnecessary investment and the “fictitious capitalization” feared in Smyth, 169 U. S., at 543-546, and so to protect ratepayers from supporting excessive capacity, or abandoned, destroyed, or phantom assets. Kahn, Tardiff, & Weisman, Telecommunications Act at three years: an economic evaluation of its implementation by the Federal Communications Commission, 11 Information Economics & Policy 319, 330, n. 27 (1999) (hereinafter Kahn, Telecommunications Act). At the same time, the prudent-investment rule was intended to give utilities an incentive to make smart investments deserving a “fair” return, and thus to mimic natural incentives in competitive markets (though without an eye to fostering the actual competition by which such markets are defined). In theory, then, the prudent-investment qualification gave the ratepayer an important protection by mitigating the tendency of a regulated market’s lack of competition to support monopolistic prices.
But the mitigation was too little, the prudent-investment rule in practice often being no match for the capacity of utilities having all the relevant information to manipulate the rate base and renegotiate the rate of return every time a rate was set. The regulatory response in some markets was adoption of a rate-based method commonly called “price caps,” United States Telephone Assn. v. FCC, 188 F. 3d 521, 524 (CADC 1999), as, for example, by the FCC’s setting of maximum access charges paid to large local-exchange companies by interexchange carriers, In re Policy and Rules Concerning Rates for Dominant Carriers, 5 FCC Rcd. 6786, 6787, ¶ 1 (1990).
The price-cap scheme starts with a rate generated by the conventional cost-of-service formula, which it takes as a benchmark to be decreased at an average of some 2-3 percent a year to reflect productivity growth, Kahn, Telecommunications Act 330-332, subject to an upward adjustment if necessary to reflect inflation or certain unavoidable “exogenous costs” on which the company is authorized to recover a return. 5 FCC Red., at 6787, ¶ 5. Although the price caps do not eliminate gamesmanship, since there are still battles to be fought over the productivity offset and allowable exogenous costs, United States Telephone Assn., supra, at 524, they do give companies an incentive “to improve productivity to the maximum extent possible,” by entitling those that outperform the productivity offset to keep resulting profits, 5 FCC Red., at 6787-6788, ¶¶7-9. Ultimately, the goal, as under the basic prudent-investment rule, is to encourage investment in more productive equipment.
Before the passage of the 1996 Act, the price cap was, at the federal level, the final stage in a century of developing ratesetting methodology. What had changed throughout the era beginning with Smyth v. Ames was prevailing opinion on how to calculate the most useful rate base, with the disagreement between fair-value and cost advocates turning on whether invested capital was the key to the right balance between investors and ratepayers, and with the price-cap scheme simply being a rate-based offset to the utilities’ advantage of superior knowledge of the facts employed in cost-of-service fatemaking. What is remarkable about this evolution of just and reasonable ratesetting, however, is what did not change. The enduring feature of ratesetting from Smyth v. Ames to the institution of price caps was the idea that calculating a rate base and then allowing a fair rate of return on it was a sensible way to identify a range of rates that would be just and reasonable to investors and ratepayers. Equally enduring throughout the period was dissatisfaction with the successive rate-based variants. From the constancy of this dissatisfaction, one possible lesson was drawn by Congress in the 1996 Act, which was that regulation using the traditional rate-based methodologies gave monopolies too great an advantage and that the answer lay in moving away from the assumption common to all the rate-based methods, that the monopolistic structure within the discrete markets would endure.
Under the local-competition provisions of the Act, Congress called for ratemaking different from any historical practice, to achieve the entirely new objective of uprooting the monopolies that traditional rate-based methods had perpetuated. H. R. Conf. Rep. No. 104-230, p. 113 (1996). A leading backer of the Act in the Senate put the new goal this way:
“This is extraordinary in the sense of telling private industry that this is what they have to do in order to let the competitors come in and try to beat your economic brains out....
“It is kind of almost a jump-start.... I will do everything I have to let you into my business, because we used to be a bottleneck; we used to be a monopoly; we used to control everything.
“Now, this legislation says you will not control much of anything. You will have to allow for nondiserimina-tory access on an unbundled basis to the network functions and services of the Bell operating companies network that is at least equal in type, quality, and price to the access [a] Bell operating company affords to itself.” 141 Cong. Rec. 15572 (1995) (remarks of Sen. Breaux (La.) on Pub. L. 104-104).
For the first time, Congress passed a ratesetting statute with the aim not just to balance interests between sellers and buyers, but to reorganize markets by rendering regulated utilities’ monopolies vulnerable to interlopers, even if that meant swallowing the traditional federal reluctance to intrude into local telephone markets. The approach was deliberate, through a hybrid jurisdictional scheme with the FCC setting a basic, default methodology for use in setting rates when carriers fail to agree, but leaving it to state utility commissions to set the actual rates.
While the Act is like its predecessors in tying the methodology to the objectives of “just and reasonable” and nondiscriminatory rates, 47 U. S. C. § 252(d)(1), it is radically unlike all previous statutes in providing that rates be set “without reference to a rate-of-return or other rate-based proceeding,” § 252(d)(l)(A)(i). The Act thus appears to be an explicit disavowal of the familiar public-utility model of rate regulation (whether in its fair-value or cost-of-service incarnations) presumably still being applied by many States for retail sales, see In re Implementation of Local Competition in Telecommunications Act of 1996,11 FCC Rcd. 15499, 15857, ¶704 (1996) (First Report and Order), in favor of novel ratesetting designed to give aspiring competitors every possible incentive to enter local retail telephone markets, short of confiscating the incumbents’ property.
B
The physical incarnation of such a market, a “local exchange,” is a network connecting terminals like telephones, faxes, and modems to other terminals within a geographical area like a city. From terminal network interface devices, feeder wires, collectively called the “local loop,” are run to local switches that aggregate traffic into common “trunks.” The local loop was traditionally, and is still largely, made of copper wire, though fiber-optic cable is also used, albeit to a far lesser extent than in long-haul markets. Just as the loop runs from terminals to local switches, the trunks run from the local switches to centralized, or tandem, switches, originally worked by hand but now by computer, which operate much like railway switches, directing traffic into other trunks. A signal is sent toward its destination terminal on these common ways so far as necessary, then routed back down another hierarchy of switches to the intended telephone or other equipment. A local exchange is thus a transportation network for communications signals, radiating like a root system from a “central office” (or several offices for larger areas) to individual telephones, faxes, and the like.
It is easy to see why a company that owns a local exchange (what the Act calls an “incumbent local exchange carrier,” 47 U. S. C. § 251(h)) would have an almost insurmountable competitive advantage not only in routing calls within the exchange, but, through its control of this local market, in the markets for terminal equipment and long-distance calling as well. A newcomer could not compete with the incumbent carrier to provide local service without coming close to replicating the incumbent’s entire existing network, the most costly and difficult part of which would be laying down the “last mile” of feeder wire, the local loop, to the thousands (or millions) of terminal points in individual houses and businesses. The incumbent company could also control its local-loop plant so as to connect only with terminals it manufactured or selected, and could place conditions or fees (called “access charges”) on long-distance carriers seeking to connect with its network. In an unregulated world, another telecommunications carrier would be forced to comply with these conditions, or it could never reach the customers of a local exchange.
II
The 1996 Act both prohibits state and local regulation that impedes the provision of “telecommunications service,” § 253(a), and obligates incumbent carriers to allow competitors to enter their local markets, § 251(c). Section 251(c) addresses the practical difficulties of fostering local competition by recognizing three strategies that a potential competitor may pursue. First, a competitor entering the market (a “requesting” carrier, § 251(c)(2)) may decide to engage in pure facilities-based competition, that is, to build its own network to replace or supplement the network of the incumbent. If an entrant takes this course, the Act obligates the incumbent to “interconnect” the competitor’s facilities to its own network to whatever extent is necessary to allow the competitor’s facilities to operate. §§ 251(a) and (c)(2). At the other end of the spectrum, the statute permits an entrant to skip construction and instead simply to buy and resell “telecommunications service,” which the incumbent has a duty to sell at wholesale. §§ 251(b)(1) and (e)(4). Between these extremes, an entering competitor may choose to lease certain of an incumbent’s “network elements,” which the incumbent has a duty to provide “on an unbundled basis” at terms that are “just, reasonable, and nondiseriminatory.” § 251(c)(3).
Since wholesale markets for companies engaged in resale, leasing, or interconnection of facilities cannot be created without addressing rates, Congress provided for rates to be set either by contracts between carriers or by state utility commission rate orders. §§ 252(a)-(b). Like other federal utility statutes that authorize contracts approved by a regulatory agency in setting rates between businesses, e. g., 16 U. S. C. § 824d(d) (Federal Power Act); 15 U. S. C. §717c(c) (Natural Gas Act), the Act permits incumbent and entering carriers to negotiate private rate agreements, 47 U. S. C. § 252(a); see also § 251(c)(1) (duty to negotiate in good faith). State utility commissions are required to accept any such agreement unless it discriminates against a carrier not a party to the contract, or is otherwise shown to be contrary.to the public interest. §§ 252(e)(1) and (e)(2)(A). Carriers, of course, might well not agree, in which case an entering carrier has a statutory option to request mediation by a state commission, § 252(a)(2). But the option comes with strings, for mediation subjects the parties to the duties specified in §251 and the pricing standards set forth in § 252(d), as interpreted by the FCC’s regulations, § 252(e)(2)(B). These regulations are at issue here.
As to pricing, the Act provides that when incumbent and requesting carriers fail to agree, state commissions will set a “just and reasonable” and “nondiscriminatory” rate for interconnection or the lease of network elements based on “the cost of providing the... network element,” which “may include a reasonable profit.” §252(d)(1). In setting these rates, the state commissions are, however, subject to that important limitation previously unknown to utility regulation: the rate must be “determined without reference to a rate-of-return or other rate-based proceeding.” Ibid. In AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 384-385 (1999), this Court upheld the FCC’s jurisdiction to impose a new methodology on the States when setting these rates. The attack today is on the legality and logic of the particular methodology the Commission chose.
As the Act required, six months after its effective date the FCC implemented the local-competition provisions in its First Report and Order, whieh included as an appendix the new regulations at issue. Challenges to the order,
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES DEPARTMENT OF COMMERCE et al. v. MONTANA et al.
No. 91-860.
Argued March 4, 1992
Decided March 31, 1992
Stevens, J., delivered the opinion for a unanimous Court.
Solicitor General Starr argued the cause for appellants. With him on the briefs were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edwin S. Kneed-ler, Michael Jay Singer, and Mark B. Stern.
Marc Racicot, Attorney General of Montana, argued the cause for appellees. With him on the brief were Clay R. Smith, Solicitor, and Elizabeth S. Baker, Assistant Attorney General.
Kenneth 0. Eikeriberry, Attorney General of Washington, James M. Johnson, Senior Assistant Attorney General, and Carole A Ressler, Assistant Attorney General, filed a brief for the State of Washington as ami-cus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts by Scott Harshbarger, Attorney General, Dwight Golann and Steve Berenson, Assistant Attorneys General, and John P. Driscoll, Jr., Edward P. Leibensperger, and Neil P. Motenko, Special Assistant Attorneys General; and for the Crow Tribe of Indians et al. by Dale T. White, Jeanne S. Whiteing, and Daniel F. Decker.
Justice Stevens
delivered the opinion of the Court.
Article I, §2, of the Constitution requires apportionment of Representatives among the several States “according to their respective Numbers.” An Act of Congress passed in 1941 provides that after each decennial census “the method known as the method of equal proportions” shall be used to determine the number of Representatives to which each State is entitled. In this case a three-judge District Court held that statute unconstitutional because it found that the method of equal proportions resulted in an unjustified deviation from the ideal of equal representation. The Government’s appeal from that holding requires us to consider the standard that governs the apportionment of Representatives among the several States. In view of the importance of the issue and its significance in this year’s congressional and Presidential elections, we noted probable jurisdiction and ordered expedited briefing and argument. 502 U. S. 1012 (1991). We now reverse.
I-H
The 1990 census revealed that the population of certain States, particularly California, Florida, and Texas, had increased more rapidly than the national average. The application of the method of equal proportions to the 1990 census caused 8 States to gain a total of 19 additional seats in the House of Representatives and 13 States to lose an equal number. Montana was one of those States. Its loss of one seat cut its delegation in half and precipitated this litigation.
According to the 1990 census, the population of the 50 States that elect the members of the House of Representatives is 249,022,783. The average size of the 435 congressional districts is 572,466. Montana’s population of 803,655 forms a single congressional district that is 231,189 persons larger than the ideal congressional district. If it had retained its two districts, each would have been 170,638 persons smaller than the ideal district. In terms of absolute difference, each of the two districts would have been closer to ideal size than the single congressional district.
The State of Montana, its Governor, Attorney General, and Secretary of State, and the State’s two Senators and Representatives (hereinafter collectively referred to as Montana) filed suit against appropriate federal defendants (the Government) in the United States District Court for the District of Montana, asserting that Montana was entitled to retain its two seats. They alleged that the existing apportionment method violates Article I, § 2, of the Constitution because it “does not achieve the greatest possible equality in the number of individuals per representative” and also violates Article I, § 2, and Article I, § 7, because reapportionment is effected “through application of a mathematical formula by the Department of Commerce and the automatic transmittal of the results to the states” rather than by legislation on which Members of Congress vote in the normal manner. A three-judge District Court, convened pursuant to 28 U. S. C. § 2284, granted Montana’s motion for summary judgment on the first claim.
The majority of the three-judge District Court decided that the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, 376 U. S. 1 (1964), should also be applied to the apportionment of seats among the States. Under that standard the only population variances that are acceptable are those that “are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown,” Kirkpatrick v. Preisler, 394 U. S. 526, 531 (1969). The District Court held that the variance between the population of Montana's single district and the ideal district could not be justified under that standard. The majority refused to accord deference to the congressional decision to adopt the method of equal proportions in 1941 because that decision was made without the benefit of this Court’s later jurisprudence adopting the “one-person, one-vote” rule. Accordingly, the District Court entered a judgment declaring the statute void and enjoining the Government from effecting any reapportionment of the House of Representatives pursuant to the method of equal proportions.
Circuit Judge O’Scannlain dissented. After noting that Congress has used four different apportionment formulas during the country’s history, and that it is not possible to create 435 districts of equal size when each district must be located entirely within a single State, he concluded that the goal of any apportionment formula must be a “ ‘practical approximation’” to a population-based allocation. He analyzed the two formulae proposed by Montana and concluded that the State had failed to demonstrate that either was better than the one that had been chosen by Congress.
H-1 HH
The general admonition in Article I, § 2, that Representatives shall be apportioned among the several States “according to their respective Numbers” is constrained by three requirements. The number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines. Although the text of Article I determined the original apportionment that the Framers had agreed upon, it did not explain how that specific allocation had been made.
When Congress first confronted the task of apportionment after the census of 1790 (and after Vermont and Kentucky had been admitted to the Union), it considered using the constitutional minimum of 30,000 persons as the size of each district. Dividing that number into the total population of 3,615,920 indicated that the House of Representatives should contain 120 members. When the number 30,000 was divided into the population of individual States, each quotient was a whole number with a fractional remainder. Thus, the use of the 30,000 divisor for Connecticut’s population of 236,841 indicated that it should have 7.89 Representatives, while Rhode Island, with a population of 68,446, should have 2.28 Representatives. Because each State must be represented by a whole number of legislators, it was necessary either to disregard fractional remainders entirely or to treat some or all of them as equal to a whole Representative.
In the first apportionment bill passed by Congress, an additional Representative was assigned to the nine States whose quotas had the highest fractional remainders. Thus, Connecticut’s quota of 7.89 gave it 8 and Rhode Island’s smaller remainder was disregarded, giving it only 2. Although that method was supported by Alexander Hamilton, Thomas Jefferson persuaded President Washington to veto the bill, in part because its allocation of eight Representatives to Connecticut exceeded the constitutional limit of one for every 30,000 persons.
In response to that veto, Congress adopted a proposal sponsored by Thomas Jefferson that disregarded fractional remainders entirely (thus giving Connecticut only seven Representatives). To overcome the basis for the veto, the size of the House was reduced from 120 to 105 members, giving each Representative an approximate constituency of 33,000 instead of 30,000 persons. Although both the total number of Representatives and the size of their districts increased, Jefferson’s method of disregarding fractional remainders was used after each of the next four censuses. Today mathematicians sometimes refer to that method as the “method of greatest divisors,” and suggest that it tends to favor large States over smaller States.
In 1832, Congress considered, but did not adopt, a proposal sponsored by John Quincy Adams that was the exact opposite of the Jefferson method. Instead of disregarding fractional remainders, Adams would have treated every fraction as a unit. Thus, using the former example as a hypothetical, both Connecticut and Rhode Island would have received one more Representative under the Adams method than they actually received under the Jefferson method. The Adams method is sometimes described as the “method of smallest divisors” and is said to favor the smaller States. It has never been endorsed by Congress.
In 1842, Congress abandoned the Jefferson method in favor of an approach supported by Senator Daniel Webster. The Webster method took account of fractional remainders that were greater than one-half by allocating “one additional representative for each State having a fraction greater than one moiety.” Thus, if that method had been used in 1790, Connecticut’s quota of 7.89 would have entitled it to 8 Representatives, whereas Rhode Island, with a quota of 2.28, would have received only 2. The Webster method is also described as the “method of major fractions.”
In 1850, Congress enacted legislation sponsored by Representative Vinton endorsing the approach that had been sponsored by Alexander Hamilton after the first census. Although this method was used during the balance of the 19th century, it occasionally seemed to produce paradoxical results. Congress rejected it in 1911, reverting to the Webster method. In that year Congress also passed legislation that ultimately fixed the number of Representatives at 4S5.
After the 1920 census Congress failed to pass a reapportionment Act, but debates over the proper method of apportionment ultimately led to a request to the National Academy of Sciences to appoint a committee of experts to review the subject. That committee, composed of respected mathematicians, recommended the adoption of the “method of equal proportions.” Congress used that method in its apportionment after the 1930 census, and formally adopted it in the 1941 statute at issue in this case.
The report of the National Academy of Sciences committee noted that Congress had properly rejected the Hamilton/ Vinton method, and concluded that the use of only five methods could lead to a workable solution of the fractional remainder problem. In the opinion of the committee members, given the fact that it is impossible for all States to have districts of the same size, the best method was the one that minimized the discrepancy between the size of the districts in any pair of States. Under their test of fairness, a method was satisfactory if, for any pair of States, the transfer of one Representative would not decrease the discrepancy between those States’ districts. The choice of a method depended on how one decided to measure the discrepancy between district sizes. Each of the five methods could be described as the “best” in the sense of minimizing the discrepancy between districts, depending on the discrepancy measure selected. The method of the harmonic mean, for example, yielded the fairest apportionment if the discrepancy was measured by the absolute difference between the number of persons per Representative. The method of major fractions was the best method if the discrepancy was measured by the absolute difference between the number of Representatives per person (also known as each person’s “share” of a Representative). The method of equal proportions produced the fairest apportionment if the discrepancy was measured by the “relative difference” in either the size of the district or the share of a Representative.
The report concluded by endorsing the method of equal proportions. The committee apparently preferred this method for two reasons. First, the method of equal proportions minimized the relative difference both between the size of congressional districts and between the number of Representatives per person. Second, in comparison with the other four methods considered, this method occupied an intermediate position in terms of favoring small States over large States: It favored small States more than major fractions and greatest divisors, but not as much as smallest divisors or the harmonic mean.
If either the method of smallest divisors or the method of the harmonic mean, also known as the “Dean Method,” had been used after the 1990 census, Montana would have received a second seat. Under the method of equal proportions, which was actually used, five other States had stronger claims to an additional seat because Montana’s claim to a second seat was the 441st on the equal proportions “priority list,” see n. 26, supra? Montana would not have received a second seat under either the method of major fractions or greatest divisors.
Ill
The Government argues that Congress’ selection of any of the alternative apportionment methods involved in this litigation is not subject to judicial review. Relying principally on Baker v. Carr, 369 U. S. 186 (1962), the Government contends that the choice among these methods presents a “political question” not amenable to judicial resolution.
In Baker v. Carr, after an extensive review of our prior cases involving political questions, we concluded:
“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unqúestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Id., at 217.
The Government insists that each of the factors identified in Baker supports the conclusion that the question presented here is committed to the “political branches” to the exclusion of the Judiciary. Significantly, however, the Government does not suggest that all congressional decisions relating to apportionment are beyond judicial review. The Government does not, for instance, dispute that a court could set aside an apportionment plan that violated the constitutional requirement that “[t]he number of Representatives shall not exceed one for every thirty Thousand.” Further, with respect to the provision that Representatives “shall be apportioned among the several States... according to their respective Numbers,” the Government acknowledges that Congress has a judicially enforceable obligation to select an apportionment plan that is related to population. The gravamen of the Government’s argument is that the District Court erred in concluding that the Constitution imposes the more rigorous requirement of greatest possible equality in the size of congressional districts, as measured by absolute deviation from ideal district size. The Government then does not dispute Montana’s contention that the Constitution places substantive limitations on Congress’ apportionment power and that violations of those limitations would present a justiciable controversy. Where the parties differ is in their understanding of the content of these limitations. In short, the Government takes issue not with the existence of a judicially enforceable right, but with the definition of such a right.
When a court concludes that an issue presents a nonjusti-ciable political question, it declines to address the merits of that issue. See Gilligan v. Morgan, 413 U. S. 1, 10-12 (1973); Baker v. Carr, 369 U. S., at 197; see also Colegrove v. Green, 328 U. S. 549, 552-556 (1946) (plurality opinion). In invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable. Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question.
The case before us today is “political” in the same sense that Baker v. Carr was a “political case.” 369 U. S., at 217. It raises an issue of great importance to the political branches. The issue has motivated partisan and sectional debate during important portions of our history. Nevertheless, the reasons that supported the justiciability of challenges to state legislative districts, as in Baker v. Carr, as well as state districting decisions relating to the election of Members of Congress, see, e. g., Wesberry v. Sanders, 376 U. S. 1 (1964); Karcher v. Daggett, 462 U. S. 725 (1983), apply with equal force to the issues presented by this litigation. The controversy between Montana and the Government turns on the proper interpretation of the relevant constitutional provisions. As our previous rejection of the political question doctrine in this context should make clear, the interpretation of the apportionment provisions of the Constitution is well within the competence of the Judiciary. See Davis v. Bandemer, 478 U. S. 109, 123 (1986); Baker v. Carr, 369 U. S., at 234-237; cf. Gilligan v. Morgan, 413 U. S., at 11. The political question doctrine presents no bar to our reaching the merits of this dispute and deciding whether the District Court correctly construed the constitutional provisions at issue.
Our previous apportionment cases concerned States’ decisions creating legislative districts; today we review the actions of Congress. Respect for a coordinate branch of Government raises special concerns not present in our prior cases, but those concerns relate to the merits of the controversy rather than to our power to resolve it. As the issue is properly raised in a case otherwise unquestionably within our jurisdiction, we must determine whether Congress exercised its apportionment authority within the limits dictated by the Constitution. See INS v. Chadha, 462 U. S. 919, 940-941 (1983); Powell v. McCormack, 395 U. S. 486, 521 (1969). Without the need for another exploration of the Baker factors, it suffices to say that, as in Baker itself and the apportionment cases that followed, the political question doctrine does not place this kind of constitutional interpretation outside the proper domain of the Judiciary.
<1
In Wesberry v. Sanders, 376 U. S. 1 (1964), the Court considered the claim of voters in Fulton County, Georgia, that the disparity between the size of their congressional district (823,680) and the average size of the 10 districts in Georgia (394,312) deprived them of the right “to have their votes for Congressmen given the same weight as the votes of other Georgians.” Id., at 3. This Court upheld the claim, concluding that Article I, § 2, had established a “high standard of justice and common sense” for the apportionment of congressional districts: “equal representation for equal numbers of people.” 376 U. S., at 18. The constitutional command that Representatives be chosen “by the People of the several States” meant that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id., at 7-8. Writing for the Court, Justice Black explained:
“It would defeat the principle solemnly embodied in the Great Compromise — equal representation in the House for equal numbers of people — for us to hold that, within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others. The House of Representatives, the Convention agreed, was to represent the people as individuals, and on a basis of complete equality for each voter.” Id., at 14.
In subsequent cases, the Court interpreted that standard as imposing a burden on the States to “make a good-faith effort to achieve precise mathematical equality.” Kirkpatrick v. Preisler, 394 U. S., at 530-531; see also Karcher v. Daggett, 462 U. S., at 730.
Our cases applying the Wesberry standard have all involved disparities in the size of voting districts within the same State. In this case, however, Montana contends, and a majority of the District Court agreed, that the Wesberry standard also applies to apportionment decisions made by Congress and that it was violated because of an unjustified variance between the population of Montana’s single district and the ideal district size.
Montana’s evidence demonstrated that if Congress had used the method of the harmonic mean, sometimes referred to as the “Dean Method,” instead of the method of equal proportions, sometimes called the “Hill Method,” to apportion the districts, 48 of the States would have received the same number of Representatives, while Washington would have received one less — eight instead of nine — and Montana would have received one more. Under an apportionment undertaken according to the Hill Method, the absolute difference between the population of Montana’s single district (803,655) and the ideal (572,466) is 231,189; the difference between the average Washington district (543,105) and the ideal is 29,361. Hence, the sum of the differences between the average and the ideal district size in the two States is 260,550. Under the Dean Method, Montana would have two districts with an average population of 401,838, representing a deviation from the ideal of 170,638; Washington would then have eight districts averaging 610,993, which is a deviation of 38,527 from the ideal district size. The sum of the deviations from the ideal in the two States would thus be 209,165 under the Dean Method (harmonic mean), while it is 260,550 under the Hill Method (equal proportions). More generally, Montana emphasizes that the Dean Method is the best method for minimizing the absolute deviations from ideal district size.
There is some force to the argument that the same historical insights that informed our construction of Article I, § 2, in the context of intrastate districting should apply here as well. As we interpreted the constitutional command that Representatives be chosen “by the People of the several States” to require the States to pursue equality in representation, we might well find that the requirement that Representatives be apportioned among the several States “according to their respective Numbers” would also embody the same principle of equality. Yet it is by no means clear that the facts here establish a violation of the Wesberry standard. In cases involving variances within a State, changes in the absolute differences from the ideal produce parallel changes in the relative differences. Within a State, there is no theoretical incompatibility entailed in minimizing both the absolute and the relative differences. In this case, in contrast, the reduction in the absolute difference between the size of Montana’s district and the size of the ideal district has the effect of increasing the variance in the relative difference between the ideal and the size of the districts in both Montana and Washington. Moreover, whereas reductions in the variances among districts within a given State bring all of the affected districts closer to the ideal, in this case a change that would bring Montana closer to the ideal pushes the Washington districts away from that ideal.
What is the better measure of inequality — absolute difference in district size, absolute difference in share of a Representative, or relative difference in district size or share? Neither mathematical analysis nor constitutional interpretation provides a conclusive answer. In none of these alternative measures of inequality do we find a substantive principle of commanding constitutional significance. The polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course.
A State’s compliance with Wesberry’s “high standard of justice and common sense” begins with a good-faith effort to produce complete equality for each voter. As our cases involving variances of only a fraction of one percent demonstrate, that goal is realistic and appropriate for state districting decisions. See Karcher v. Daggett, 462 U. S., at 730-743. In this case, however, whether Montana has one district or two, its variance from the ideal will exceed 40 percent.
The constitutional guarantee of a minimum of one Representative for each State inexorably compels a significant departure from the ideal. In Alaska, Vermont, and Wyoming, where the statewide districts are less populous than the ideal district, every vote is more valuable than the national average. Moreover, the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50. Accordingly, although “common sense” supports a test requiring “a good-faith effort to achieve precise mathematical equality” within each State, Kirkpatrick v. Preisler, 394 U. S., at 530-531, the constraints imposed by Article I, §2, itself make that goal illusory for the Nation as a whole.
This commonsense understanding of a characteristic of our Federal Government must have been obvious to the masters of compromise who framed our Constitution. The spirit of compromise that provided two Senators for every State and Representatives of the People “according to their respective Numbers” in the House must also have motivated the original allocation of Representatives specified in Article I, §2, itself. Today, as then, some compromise between the interests of larger and smaller States must be made to achieve a fair apportionment for the entire country.
The constitutional framework that generated the need for compromise in the apportionment process must also delegate to Congress a measure of discretion that is broader than that accorded to the States in the much easier task of determining district sizes within state borders. Article I, § 8, cl. 18, expressly authorizes Congress to enact legislation that “shall be necessary and proper” to carry out its delegated responsibilities. Its apparently good-faith choice of a method of apportionment of Representatives among the several States “according to their respective Numbers” commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid'' mathematical standard.
The District Court suggested that the automatic character of the application of the method of equal proportions was inconsistent with Congress’ responsibility to make a fresh legislative decision after each census. We find no merit in this suggestion. Indeed, if a set formula is otherwise constitutional, it seems to us that the use of a procedure that is administered efficiently and that avoids partisan controversy supports the legitimacy of congressional action, rather than undermining it. To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served, provided, of course, that any such rule remains open to challenge or change at any time. We see no constitutional obstacle preventing Congress from adopting such a sensible procedure.
The decision to adopt the method of equal proportions was made by Congress after decades of experience, experimentation, and debate about the substance of the constitutional requirement. Independent scholars supported both the basic decision to adopt a regular procedure to be followed after each census and the particular decision to use the method of equal proportions. For a half century the results of that method have been accepted by the States and the Nation. That history supports our conclusion that Congress had ample power to enact the statutory procedure in 1941 and to apply the method of equal proportions after the 1990 census.
The judgment of the District Court is reversed.
It is so ordered.
Article I, § 2, originally provided that “Representatives... shall be apportioned among the several States... according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
Section 2 of the Fourteenth Amendment modified this provision by establishing that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
55 Stat. 761-762; 2 U. S. C. §2a(a).
775 F. Supp. 1358, 1366 (Mont. 1991).
Three States, California, Florida, and Texas, accounted for 14 of those gains; five States, Arizona, Georgia, North Carolina, Virginia, and Washington, each gained one seat. 2 App. 20.
New York lost three seats; Illinois, Michigan, Ohio, and Pennsylvania each lost two seats; and Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Montana, New Jersey, and West Virginia each lost one seat. Ibid.
See ibid.
The three state officials brought suit on behalf of all voters in Montana.
Complaint ¶ 19.
Id., ¶¶ 28-29.
Having granted summary judgment on the first claim, the District Court found it unnecessary to reach the merits of the claim relating to the automatic method of apportionment. 776 F. Supp., at 1366.
Ibid.
Id., at 1369 (quoting 2 J. Story, Commentaries on the Constitution of the United States § 676 (1833)).
Montana alleged that the “method of the harmonic mean” or the “method of smallest divisors” would yield a fairer result. Subsequent to the decision below, a District Court in Massachusetts rejected a challenge to Congress’ adoption of the method of equal proportions. In that litigation, Massachusetts plaintiffs asserted that the superiority of another method, that of “major fractions,” demonstrated that the method of equal proportions was unconstitutional. Massachusetts v. Mosbacher, Civ. Action No. 91-11234-WD (Mass., Feb. 20,1992).
The first and second requirements are set forth explicitly in Article I, §2, of the Constitution. The requirement that districts not cross state borders appears to be implicit in the text and has been recognized by continuous historical practice. See 775 F. Supp., at 1365, n. 4; id., at 1368 (O’Scannlain, J., dissenting).
Section 2, cl. 3, required an enumeration of the population to be made within three years after the first meeting of Congress and provided that “until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”
See M. Balinski & H. Young, Fair Representation, Meeting the Ideal of One Man, One Vote 10-13 (1982) (hereinafter Balinski & Young).
See id., at 16-22. President Washington’s veto message read as follows:
“Gentlemen of the House of Representatives:
“I have maturely considered the act passed by the two Houses entitled ‘An act for an Apportionment of Representatives among the several States, according to the first Enumeration;’ and I return it to your House, wherein it originated, with the following objections:
“First. The Constitution has prescribed that Representatives shall be apportioned among the several States according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the States, will yield the number and allotment of Representatives proposed by the bill.
“Second. The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States; and the bill has allotted to eight of the States more than one for every thirty thousand, “G. Washington”
3 Annals of Cong. 539 (1792).
The 1802 apportionment Act continued the ratio of 33,000, which then corresponded to a House of 141 Members. Act of Jan. 14, 1802, 2 Stat. 128. The third apportionment established a ratio of 35,000, which provided a House of 181 Members. Act of Dec. 21,1811, 2 Stat. 669. The 1822 apportionment Act increased the ratio to 40,000 and the size of the House to 213. Act of Mar. 7,1822, 3 Stat. 651. The 1832 apportionment Act provided for 240 districts representing an average of 47,700 persons each. Act of May 22,1832, ch. 91,4 Stat. 516. See generally L. Schmeek-ebier, Congressional Apportionment 111-113 (1941).
See Balinski & Young 73-75.
Ibid.
Act of June 25,1842, 5 Stat. 491.
Act of May 23, 1850, §§24-26, 9 Stat. 432-433. Under the Hamilton/ Vinton method, the Nation’s population was divided by the size of the House (set at 233 in 1850) to determine the ratio of persons per Representative. This ratio was then divided into the population of a State to establish its quota. Each State would receive the number of Representatives corresponding to the whole number of the quota (ignoring the fractional remainders). The remaining seats necessary to bring the nationwide total to the proper size (233 in 1850) would then be distributed to the States with the largest fractional remainders. In practice, the method was not strictly followed. See Balinski & Young 37; Chafee, Congressional Reapportionment, 42 Harv. L. Rev. 1015, 1025 (1929).
The Hamilton/Vinton method was subject to the “Alabama paradox,” a mathematical phenomenon in which a State’s number of Representatives may decrease when the size of the House is increased.- See Balinski & Young 38-40; Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1026.
The 1911 statute actually specified 433 Representatives but authorized an additional Representative for Arizona and New Mexico when they were admitted to the Union. See 37 Stat. 13. Additional Representatives were also authorized when Alaska and Hawaii were admitted to the Union in 1959, but the number thereafter reverted to 435, where it has remained ever since. See 72 Stat.' 345; 73 Stat. 8.
Act of Nov. 15,1941, § 1,55 Stat. 761-762,2 U. S. C. § 2a. That Act also made the reapportionment process self-executing, eliminating the need for Congress to enact an apportionment Act after each decennial census:
“(a) On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member.
“(b)... It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of such statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section.”
The five were the “method of smallest divisors,” the “method of the harmonic mean,” the “method of equal proportions,” the “method of major fractions,” and the “method of greatest divisors.” 1 App. 17.
Each of the methods corresponds to a different formula for producing a “priority list.” A priority list is the mechanical method used in modern apportionments to translate a particular method of apportionment into a particular assignment of Representatives. The technical process of forming the priority list proceeds as follows. First, one Representative is assigned to each State to satisfy the constitutional guarantee. Second, the population of each State is divided by a certain tabulated series of divisors. Third, the quotients for all the States are arranged in a single series in order of size, beginning with the largest quotient, for the 51st Member of the House. This forms the priority list. The series of quotients is different for each of the five apportionment methods. See Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1029, n. 39.
The following are the divisors by which a State’s population is divided under each method (“n” is the number of the State’s next seat):
Smallest Divisors: n— 1
Harmonic Mean: (n-l) + n
Equal Proportions: Vra(re-1)
Major Fractions: n-1 Greatest Divisors: n
Thus, the divisors for the second, third, fourth,
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_lcdispositiondirection
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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
LEHNERT et al. v. FERRIS FACULTY ASSOCIATION et al.
No. 89-1217.
Argued November 5, 1960
Decided May 30, 1991
Blackmun, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, in which Rehnquist, C. J., and White, Marshall, and Stevens, JJ., joined, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which Rehnquist, C. J., and White and Stevens, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 533. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O’Connor and Souter, JJ., joined, and in all but Part III-C of which Kennedy, J., joined, post, p. 550. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 562.
Raymond J. LaJeunesse, Jr., argued the cause and filed briefs for petitioners.
Robert H. Chanin argued the cause for respondents. With him on the brief was Bruce R. Lerner
Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; for the American Federation of State, County and Municipal Employees Councils 1, 52, 71, 73, et al. by Lawrence A. Poltrock, Richard Kirschner, Paul Schachter, Patrick M. Scanlon, and James B. Coppess.
Briefs of amici curiae urging reversal were filed for Landmark Legal Foundation by Jerald L. Hill and Mark Bredemeier; for the Center on National Labor Policy by Michael E. Avakian and Robert F. Gore; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun, Anthony T. Caso, and Sharon L. Browne; and for the Public Service Research Council, Inc., by Edwin Vieira, Jr.
Justice Blackmun
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which The Chief Justice, Justice White, and Justice Stevens join.
This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector.
I
Michigan’s Public Employment Relations Act (Act), Mich. Comp. Laws §423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an “agency-shop” arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a “service fee” to the union.
Respondent Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution and is funded by the State. See Mich. Const., Art. VIII, §4. Since 1975, the FFA and Ferris have entered into successive collective-bargaining agreements containing agency-shop provisions. Those agreements were the fruit of negotiations between the FFA and respondent Board of Control, the governing body of Ferris. See Mich. Comp. Law §390.802 (1988).
Subsequent to this Court’s decision in Abood v. Detroit Board of Education, 431 U. S. 209 (1977), in which the Court upheld the constitutionality of the Michigan agency-shop provision and outlined permissible uses of the compelled fee by public-employee unions, Ferris proposed, and the FFA agreed to, the agency-shop arrangement at issue here. That agreement required all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. Of the $284 service fee for 1981-1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48 to the NEA.
Petitioners were members of the Ferris faculty during the period in question and objected to certain uses by the unions of their service fees. Petitioners instituted this action, pursuant to Rev. Stat. §§1979-1981, 42 U. S. C. §§1983, 1985, 1986, in the United States District Court for the Western District of Michigan, claiming that the use of their fees for purposes other than negotiating and administering a collective-bargaining agreement with the Board of Control violated rights secured to them by the First and Fourteenth Amendments to the United States Constitution. Petitioners also claimed that the procedures implemented by the unions to determine and collect service fees were inadequate.
After a 12-day bench trial, the District Court issued its opinion holding that certain union expenditures were chargeable to petitioners, that certain other expenditures were not chargeable as a matter of law, and that still other expenditures were not chargeable because the unions had failed to sustain their burden of proving that the expenditures were made for chargeable activities. 643 F. Supp. 1306 (1986).
Following a partial settlement, petitioners took an appeal limited to the claim that the District Court erred in holding that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court’s conclusion that the union constitutionally could charge them for the costs of (1) lobbying and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners’ bargaining unit; (3) public-relations efforts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it materialized, would have violated Michigan law.
The Court of Appeals, with one judge dissenting in large part, affirmed. 881 F. 2d 1388 (CA6 1989). After reviewing this Court’s cases in the area, the court concluded that each of the challenged activities was sufficiently related to the unions’ duties as the exclusive bargaining representative of petitioners’ unit to justify compelling petitioners to assist in subsidizing it. The dissenting judge concurred with respect to convention expenses but disagreed with the majority’s resolution of the other items challenged. Id., at 1394. Because of the importance of the issues, we granted certio-rari. 496 U. S. 924 (1990).
h-1 1 — 4
This is not our first opportunity to consider the constitutional dimensions of union-security provisions such as the agency-shop agreement at issue here. The Court first addressed the question in Railway Employes v. Hanson, 351 U. S. 225 (1956), where it recognized the validity of a “union-shop” agreement authorized by § 2 Eleventh of the Railway Labor Act (RLA), as amended, 64 Stat. 1238, 45 U. S. C. § 152 Eleventh, as applied to private employees. As with the Michigan statute we consider today, the RLA provision at issue in Hanson was permissive in nature. It was more expansive than the Michigan Act, however, because the challenged RLA provision authorized an agreement that corn-pelled union membership, rather than simply the payment of a service fee by a nonmember employee.
Finding that the concomitants of compulsory union membership authorized by the RLA extended only to financial support of the union in its collective-bargaining activities, the Court determined that the challenged arrangement did not offend First or Fifth Amendment values. It cautioned, however: “If ‘assessments’ are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented.” 351 U. S., at 235 (footnote omitted). It further emphasized that the Court’s approval of the statutorily sanctioned agreement did not extend to cases in which compelled membership is used “as a cover for forcing ideological conformity or other action in contravention of the First Amendment.” Id., at 238.
. Hanson did not directly concern the extent to which union dues collected under a governmentally authorized union-shop agreement may be utilized in support of ideological causes or political campaigns to which reluctant union members are opposed. The Court addressed that issue under the RLA in Machinists v. Street, 367 U. S. 740 (1961). Unlike Hanson, the record in Street was replete with detailed information and specific factual findings that the union dues of dissenting employees had been used for political purposes. Recognizing that, in enacting § 2 Eleventh of the RLA, Congress sought to protect the expressive freedom of dissenting employees while promoting collective representation, the Street Court construed the RLA to deny unions the authority to expend dissenters’ funds in support of political causes to which those employees objected.
Two years later in Railway Clerks v. Allen, 373 U. S. 113 (1963), another RLA case, the Court reaffirmed that holding. It emphasized the important distinction between a union’s political expenditures and “those germane to collective bargaining,” with only the latter being properly chargeable to dissenting employees under the statute.
Although they are cases of statutory construction, Street and Allen are instructive in delineating the bounds of the First Amendment in this area as well. Because the Court expressly has interpreted the RLA “to avoid serious doubt of [the statute’s] constitutionality,” Street, 367 U. S., at 749; see Ellis v. Railway Clerks, 466 U. S. 435, 444 (1984), the RLA cases necessarily provide some guidance regarding what the First Amendment will countenance in the realm of union support of political activities through mandatory assessments. Specifically, those cases make clear that expenses that are relevant or “germane” to the collective-bargaining functions of the union generally will be constitutionally chargeable to dissenting employees. They further establish that, at least in the private sector, those functions do not include political or ideological activities.
It was not until the decision in Abood that this Court addressed the constitutionality of union-security provisions in the public-employment context. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it determined that the claim that a union has utilized an individual agency-shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions:
First, it recognized that “[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” 431 U. S., at 222. Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. See, e. g., Wooley v. Maynard, 430 U. S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”).
Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public-employment union does not, without more, violate the First Amendment rights of public employees. Similarly, an employee’s free speech rights are not unconstitutionally burdened because the employee opposes positions taken by a union in its capacity as collective-bargaining representative. “[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” 431 U. S., at 222.
In this connection, the Court indicated that the considerations that justify the union shop in the private context — the desirability of labor peace and eliminating “free riders” — are equally important in the public-sector workplace. Consequently, the use of dissenters’ assessments “for the purposes of collective bargaining, contract administration, and grievance adjustment,” id., at 225-226, approved under the RLA, is equally permissible when authorized by a State vis-a-vis its own workers.
Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, 427 U. S. 347 (1976) (plurality opinion), or upon professed religious allegiance, see Torcaso v. Watkins, 367 U. S. 488 (1961), similarly prohibit a public employer “from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job” as a public educator. 431 U. S., at 235.
The Court in Abood did not attempt to draw a precise line between permissible assessments for public-sector collective-bargaining activities and prohibited assessments for ideological activities. It did note, however, that, while a similar line must be drawn in the private sector under the RLA, the distinction in the public sector may be “somewhat hazier.” Id., at 236. This is so because the “process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process.” Ibid.
Finally, in Ellis, the Court considered, among other issues, a First Amendment challenge to the use of dissenters’ funds for various union expenses including union conventions, publications, and social events. Recognizing that by allowing union-security arrangements at all, it has necessarily countenanced a significant burdening of First Amendment rights, it limited its inquiry to whether the expenses at issue “involve[d] additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest.” 466 U. S., at 456 (emphasis added).
Applying that standard to the challenged expenses, the Court found all three to be properly supportable through mandatory assessments. The dissenting employees in Ellis objected to charges relating to union social functions, not because those activities were inherently expressive or ideological in nature, but purely because they were sponsored by the union. Because employees may constitutionally be compelled to affiliate with a union, the Court found that forced contribution to union social events that were open to all imposed no additional burden on their First Amendment rights. Although the challenged expenses for union publications and conventions were clearly communicative in nature, the Court found them to entail little additional encroachment upon freedom of speech, “and none that is not justified by the governmental interests behind the union shop itself.” Ibid. See also Keller v. State Bar of California, 496 U. S. 1 (1990), and Communications Workers v. Beck, 487 U. S. 735 (1988).
Thus, although the Court’s decisions in this area prescribe a case-by-case analysis in determining which activities a union constitutionally may charge to dissenting employees, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be “germane” to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders”; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.
Ill
In arguing that these principles exclude the charges upheld by the Court of Appeals, petitioners propose two limitations on the use by public-sector unions of dissenters’ contributions. First, they urge that they may not be charged over their objection for lobbying activities that do not concern legislative ratification of, or fiscal appropriations for, their collective-bargaining agreement. Second, as to nonpolitical expenses, petitioners assert that the local union may not utilize dissenters’ fees for activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong. We accept the former proposition but find the latter to be foreclosed by our prior decisions.
A
The Court of Appeals determined that unions constitutionally may subsidize lobbying and other political activities with dissenters’ fees so long as those activities are “ ‘pertinent to the duties of the union as a bargaining representative.’ ” 881 F. 2d, at 1392, quoting Robinson v. New Jersey, 741 F. 2d 598, 609 (CA3 1984), cert. denied, 469 U. S. 1228 (1985). In reaching this conclusion, the court relied upon the inherently political nature of salary and other workplace decisions -in public employment. “To represent their members effectively,” the court concluded, “public sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members’ interests in legislative and other ‘political’ arenas.” 881 F. 2d, at 1392.
This observation is clearly correct. Public-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. See Note, Union Security in the Public Sector: Defining Political Expenditures Related to Collective Bargaining, 1980 Wis. L. Rev. 134, 150-152. Similarly, union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispensable prerequisite to their implementation. See Developments in the Law: Public Employment, 97 Harv. L. Rev. 1611, 1732-1733 (1984). It was in reference to these characteristics of public employment that the Court in Abood discussed the “somewhat hazier” line between bargaining-related and purely ideological activities in the public sector. 431 U. S., at 236. The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one.
This, however, is not such a case. Where, as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter’s collective-bargaining agreement, but to financial support of the employee’s profession or of public employees generally, the connection to the union’s function as bargaining representative is too attenuated to justify compelled support by objecting employees.
We arrive at this result by looking to the governmental interests underlying our acceptance of union-security arrangements. We have found such arrangements to be justified by the government’s interest in promoting labor peace and avoiding the “free-rider” problem that would otherwise accompany union recognition. Teachers v. Hudson, 475 U. S. 292, 302-303 (1986); Abood, 431 U. S., at 224. Neither goal is served by charging objecting employees for lobbying, electoral, and other political activities that do not relate to their collective-bargaining agreement.
Labor peace is not especially served by allowing such charges, because, unlike collective-bargaining negotiations between union and management, our national and state legislatures, the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said to speak with one voice, it would not further the cause of harmonious industrial relations to compel objecting employees to finance union political activities as well as their own.
Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called “free-rider” concern is inapplicable where lobbying extends beyond the effectuation of a collective-bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee’s life.
Perhaps most important, allowing the use of dissenters’ assessments for political activities outside the scope of the collective-bargaining context would present “additional interference with the First Amendment interests of objecting employees.” Ellis, 466 U. S., at 456. There is no question as to the expressive and ideological content of these activities. Further, unlike discussion by negotiators regarding the terms and conditions of employment, lobbying and electoral speech are likely to concern topics about which individuals hold strong personal views. Although First Amendment protection is in no way limited to controversial topics or emotionally charged issues, see Winters v. New York, 333 U. S. 507, 510 (1948); Buckley v. Valeo, 424 U. S. 1, 14 (1976); Abood, 431 U. S., at 231, and n. 28, the extent of one’s disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect.
The burden upon freedom of expression is particularly great where, as here, the compelled speech is in a public context. By utilizing petitioners’ funds for political lobbying and to garner the support of the public in its endeavors, the union would use each dissenter as “an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Maynard, 430 U. S., at 715. The First Amendment protects the individual’s right of participation in these spheres from precisely this type of invasion. Where the subject of compelled speech is the discussion of governmental affairs, which is at the core of our First Amendment freedoms, Roth v. United States, 354 U. S. 476, 484 (1957); Mills v. Alabama, 384 U. S. 214, 218 (1966); Buckley v. Valeo, 424 U. S., at 14, the burden upon dissenters’ rights extends far beyond the acceptance of the agency shop and is constitutionally impermissible.
Accordingly, we hold that the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.
B
Petitioners’ contention that they may be charged only for those collective-bargaining activities undertaken directly on behalf of their unit presents a closer question. While we consistently have looked to whether nonideological expenses are “germane to collective bargaining,” Hanson, 351 U. S., at 235, we have never interpreted that test to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit.
We think that to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate. Under such arrangements, membership in the local union constitutes membership in the state and national parent organizations. See 643 F. Supp., at 1308. See also Cumero v. Public Employment Relations Board, 49 Cal. 3d 575, 603-604, 778 P. 2d 174, 192 (1989) (noting the inherent “close organizational relationship”).
The essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.
The Court recognized as much in Ellis. There it construed the RLA to allow the use of dissenters’ funds to help defray the costs of the respondent union’s national conventions. It reasoned that “if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy.” 466 U. S., at 448. We see no reason why analogous public-sector union activities should be treated differently.
We therefore conclude that a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters’ dollars for bargaining activities wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest-free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local’s responsibilities as an affiliate but is in the nature of a charitable donation would not be chargeable to dissenters. There must be some indication that the payment is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. Teachers v. Hudson, 475 U. S., at 306; Abood, 431 U. S., at 239-240, n. 40; Railway Clerks v. Allen, 373 U. S., at 122. We conclude merely that the union need not demonstrate a direct and tangible impact upon the dissenting employee’s unit.
C
Justice Scalia would find “implicit in our cases since Street,” the rule that “to be constitutional, a charge must at least be incurred in performance of the union’s statutory duties.” Post, at 558. As the preceding discussion indicates, we reject this reading of our cases. This Court never has held that the First Amendment compels such a requirement and our prior decisions cannot reasonably be construed to support his stated proposition. See, e. g., Ellis, 466 U. S., at 456 (“Petitioners may feel that their money is not being well-spent, but that does not mean they have a First Amendment complaint”); see also Keller v. State Bar of California, 496 U. S. 1 (1990) (distinguishing between statutory and constitutional duties in the context of integrated state bar membership).
Even if viewed merely as a prophylactic rule for enforcing the First Amendment in the union-security context, Justice Scalia’s approach ultimately must be rejected. As the relevant provisions of the Michigan Act illustrate, state labor laws are rarely precise in defining the duties of public-sector unions to their members. Indeed, it is reasonable to assume that the Michigan provisions relating to collective-bargaining duties were purposefully drafted in broad terms so as to provide unions the flexibility and discretion necessary to accommodate the needs of their constituents. Here, as in the RLA context, “[t]he furtherance of the common cause leaves some leeway for the leadership of the group.” Street, 367 U. S., at 778 (Douglas, J., concurring), quoted in Abood, 431 U. S., at 222-223.
Consequently, the terms of the Act provide a poor criterion for determining which charges violate the First Amendment rights of dissenting employees. The broad language of the Act does not begin to explain which' of the specific activities at issue here fall within the union’s collective-bargaining function as contemplated by our cases. Far from providing a bright-line standard, Justice Scalia’s “statutory duties” test fails to afford courts and litigants the guidance necessary to make these particularized distinctions.
More important, Justice Scalia’s rigid approach fails to acknowledge the practicalities of the complex interrelationship between public employers, employees, unions, and the public. The role of an effective representative in this context often encompasses responsibilities that extend beyond those specifically delineated in skeletal state labor law statutes. See Abood, 431 U. S., at 236. That an exclusive bargaining representative has gone beyond the bare requirements of the law in representing its constituents through employee contributions does not automatically mean that the Constitution has been violated, at least where the funded activities have not transgressed state provisions. “The very nature of the free-rider problem and the governmental interest in overcoming it require that the union have a certain flexibility in its use of compelled funds.” Ellis, 466 U. S., at 456.
We therefore disagree with Justice Scalia that any charge that does not relate to an activity expressly authorized by statute is constitutionally invalid, irrespective of its impact, or lack thereof, on free expression. In our view, his analysis turns our constitutional doctrine on its head. Instead of interpreting statutes in light of First Amendment principles, he would interpret the First Amendment in light of state statutory law. It seems to us that this proposal bears little relation to the values that the First Amendment was designed to protect. A rule making violations of freedom of speech dependent upon the terms of state employment statutes would sacrifice sound constitutional analysis for the appearance of administrability.
We turn to the union activities at issue in this case.
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A
The Court of Appeals found that the union could constitutionally charge petitioners for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher’s Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and “millages” or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of petitioners’ collective-bargaining agreement. We hold that none may be supported through the funds of objecting employees.
B
Petitioners next challenge the Court of Appeals’ allowance of several activities that the union did not undertake directly on behalf of persons within petitioners’ bargaining unit. This objection principally concerns NEA “program expenditures” destined for States other than Michigan, and the expenses of the Teacher’s Voice listed as “Collective Bargaining” and “Litigation.” Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relationship is necessary in the collective-bargaining context.
This rationale does not extend, however, to the expenses of litigation that does not concern the dissenting employees’ bargaining unit or, by extension, to union literature reporting on such activities. While respondents are clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit, we find extraunit litigation to be more akin to lobbying in both kind and effect. We long have recognized the important political and expressive nature of litigation. See, e. g., NAACP v. Button, 371 U. S. 415, 431 (1963) (recognizing that for certain groups, “association for litigation may be the most effective form of political association”). Moreover, union litigation may cover a diverse range of areas from bankruptcy proceedings to employment discrimination. See Ellis, 466 U. S., at 453. When unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative. Just as the Court in Ellis determined that the RLA, as informed by the First Amendment, prohibits the use of dissenters’ fees for extraunit litigation, ibid., we hold that the Amendment proscribes such assessments in the public sector.
C
The Court of Appeals determined that the union constitutionally could charge petitioners for certain public relations expenditures. In this connection, the court said: “Public relations expenditures designed to enhance the reputation of the teaching profession... are, in our opinion, sufficiently related to the unions’ duty to represent bargaining unit employees effectively so as to be chargeable to dissenters.” 881 F. 2d, at 1394. We disagree. Like the challenged lobbying conduct, the public relations activities at issue here entailed speech of a political nature in a public forum. More important, public speech in support of the teaching profession generally is not sufficiently related to the union’s collective-bargaining functions to justify compelling dissenting employees to support it. Expression of this kind extends beyond the negotiation and grievance-resolution contexts and imposes a substantially greater burden upon First Amendment rights than do the latter activities.
Nor do we accept the Court of Appeals’ comparison of these public relations expenses to the costs of union social activities held in Ellis to be chargeable to dissenters. In Ellis, the Court found the communicative content of union social activities, if any, to derive solely from the union’s involvement in them. 466 U. S., at 456. “Therefore,” we reasoned, “the fact that the employee is forced to contribute does not increase the infringement of his First Amendment rights already resulting from the compelled contribution to the union.” Ibid. The same cannot be said of the public relations charges upheld by the Court of Appeals which covered “informational picketing, media exposure, signs, posters and buttons.” 643 F. Supp., at 1313.
D
The District Court and the Court of Appeals allowed charges for those portions of the Teachers’ Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of petitioners’ bargaining unit, these expenditures are for the benefit of all and we discern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. See 466 U. S., at 456.
E
The Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. Petitioners challenge that determination and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meetings at issue here were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to petitioners’ unit.
We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners’ support. We conclude above that the First Amendment does not require so close a connection
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appfed
|
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 "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.
Tighe E. WOODS, Housing Expediter, Office of the Housing Expediter, Appellant, v. Dorothy A. KOOGLE, Appellee.
No. 11107.
United States Court of Appeals Sixth Circuit.
March 20, 1950.
Paul Marshall, Cleveland, Ohio, for appellant.
A. M. Howes, Akron, Ohio, for appellee.
Before HICKS, Chief Judge, and Mc-ALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The above cause coming on to 'be heard, and it appearing that appellant heretofore filed a motion for reversal of the judgment of the District Court, and on the hearing of such motion, an order was entered by this court providing that unless objections to the granting of appellant’s motion for reversal of the judgment be filed with this .court on or before March 16, 1950, that an order would be entered granting appellant’s motion; and it further appearing that in the said order of the court, it was provided that a copy of that order be served by mail by the Clerk of this court upon counsel for appellee at least ten days prior to the date provided for the filing of the said objections ; and it further appearing that a copy of the said order was served by the Clerk of this court upon counsel, as required in accordance with the said order, and no objections having been filed,
Now, therefore, it is hereby ordered, adjudged, and decreed that the above cause be remanded to the District Court for entry of a judgment granting appellant’s petition for restitution as prayed, as well as for a permanent injunction.
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:
|
sc_casedisposition
|
D
|
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.
ASSOCIATED PRESS v. WALKER.
No. 306.
Decided October 16, 1967.
William, P. Rogers, Leo P. Larkin, Jr., Stanley Go-dofsky, Arthur Moynihan, Earl T. Thomas, John T. Guyton and Billy R. Pesnell for petitioner.
W. Scott Wilkinson and Clyde J. Watts for respondent.
Per Curiam.
The petition for a writ of certiorari is granted. The judgment is reversed and the cáse is remanded for further proceedings not inconsistent with Curtis Publishing Co. v. Butts, 388 U. S. 130.
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:
|
sc_issuearea
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
BATES v. UNITED STATES
No. 96-7185.
Argued October 7, 1997
Decided November 4, 1997
Ginsburg, J., delivered the opinion for a. unanimous Court.
C. Richard Oren, by appointment of the Court, 520 U. S. 1114, argued the cause and filed briefs for petitioner.
Lisa Schiavo Blatt argued the cause for the United States. With her on the brief were Acting Solicitor General Dellin-ger, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Daniel S. Goodman.
Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the meaning of § 490(a) (Pub. L. 99-498), 100 Stat. 1491, as added, 20 U. S. C. § 1097(a) (1988 ed.), which declared it a felony “knowingly and willfully” to misapply student loan funds insured under Title IV of the Higher Education Act of 1965. The United States acknowledges that § 1097(a) demanded allegation and proof of the defendant’s intentional conversion of loan funds to his own use or the use of a third party. The question presented is whether § 1097(a) demanded, in addition, allegation and proof that the defendant specifically intended to injure or defraud someone — either the United States as loan guarantor, as the District Court read the measure, or another. We hold, in accord with the Court of Appeals, that specific intent to. injure or defraud someone, whether the United States or another, is not an element of the misapplication of funds proscribed by § 1097(a).
I
. The indictment in this ease, App. 2-12, alleged the following facts. James and Laurenda Jackson ówned and operated Education America, Inc., a for-profit consulting and management firm for technical and vocational schools. In December 1986, the Jacksons acquired the Acme Institute of Technology, a not-for-profit technical school located in South Bend, Indiana, which offered associate degree programs in electronic engineering, and tool, die, and plastics mold design. After the acquisition, the Jacksons appointed Bates— then the vice president of Education America — to serve as treasurer of Acme’s board of trustees.
On April 30, 1987, James Jackson, as president of Acme, signed a program participation agreement with the Department of Education that authorized the school to receive student loan checks through the Title IV federal Guaranteed Student Loan (GSL) program. See 20 U. S. C. § 1070 et seq. (1988 ed.). Acme’s participation hinged upon both its continued accreditation by an approved accrediting association and Jackson’s promise to comply with all applicable statutes and regulations.
Under the GSL program, banks and other private institutions lent money to Acme students for tuition and other educational expenses. The Federal Government administered the program and guaranteed payment if a student borrower defaulted. Acme would receive a loan check directly from the lender, endorse the check, and credit the amount of the check against the student’s tuition debt. If a GSL student withdrew from Acme before the term ended, the governing regulations, 34 CFR §§668.22 and 682.606 (1990), required Acme to return to the lender a portion of the loan proceeds, based upon how late in the term the student withdrew and how much the student had paid at that point. Refunds to the lender, the applicable regulation, §682.607, instructed, were to be made within a specified period (30 or 60 days) following the student’s withdrawal. The lender would then deduct the refund from the amount that the student owed. If Acme did not refund the loans to the lender, the student — and if she defaulted, the Government — would remain liable for the full amount of the loan.
Around the end of 1987, pursuant to decisions made by the Jacksons and Bates, Acme initiated a pattern and practice of not making GSL refunds. On April 14,1988, James Jackson sent a letter to Acme’s director ordering him, effective the following month, to “tally [Acme’s] receipts for the preceding month and remit a management fee of 10% of [the] total receipts to Education America, Inc.” App. 4. The letter also told the director to pay the Jacksons a monthly salary. The letter further stated: “If the above creates a cash shortfall in your school, money will be loaned back to you to cover the shortfall.” See ibid. Bates, serving as Acme’s chief financial officer, permitted these fee and salary payments to take priority over*the GSL refunds, and specifically instructed other Acme employees not to make the required GSL refunds. In late 1988 or early 1989, Education America officials ordered Acme to stop using a special bank account that segregated the unearned student-loaned tuition from the general account. Acme’s former owners had used this special account to ensure that funds were always available for timely refunds to lenders.
By October 1988, Acme had amassed roughly $55,000 in unmade GSL refunds. Acme’s financial aid director sent James Jackson a letter in January 1989 to draw Jackson’s attention to the gravity of the unmade refunds, which then totaled $68,000. By March 1989, Acme’s refund liability had grown to approximately $85,000. In a letter dated March 13, 1989, Bates, as Education America’s vice president, released Acme’s financial aid director from all responsibility concerning GSL refunds, as she had requested. The letter stated that unmade refunds were “solely the responsibility and decision of the corporate office.” See id., at 5.
In April 1989, the National Association of Trade and Technical Schools, a national accrediting association, conducted an on-site audit of Acme to determine whether it should continue to accredit the school. A month later, the Association reported to the Department of Education that Acme had “inadequately demonstrated its ability to make appropriate and timely refunds,” and had “loaned substantial amounts of money to [James Jackson,] the chief trustee.” The report also noted evidence that management fees had been “upstream[ed]” to Education America. See ibid. Acme subsequently lost its accreditation, and the Department of Education notified the school on April 7, 1990, that effective March 8, 1990, Acme was no longer eligible to participate in the GSL program. On June 5, 1990, Acme ceased operations. During Bates’s tenure as Acme’s chief financial officer, the school amassed $139,649 in unmade refunds, not including interest and certain special allowances.
On September 8,1994, a federal grand jury indicted Bates on twelve counts of “knowingly and willfully misapply[ing],” id., at 11, federally insured student loan funds between January 15, 1990, and June 15, 1990, in violation of 20 U. S. C. § 1097(a) (1988 ed.) and 18 U. S. C. §2 (1988 ed.). On February 7, 1995, Bates filed a motion to dismiss the indictment. He argued, and the District Court agreed, that conviction under § 1097(a) for willful misapplication required an allegation of the defendant’s “intent to injure or defraud the United States.” 96 F. 3d 964, 967 (CA7 1996). Because the indictment lacked such an allegation, the District Court dismissed it.
On appeal, the Seventh Circuit vacated the District Court’s judgment and reinstated the prosecution. 96 F. 3d 964 (1996). The Court of Appeals concluded that § 1097(a) required the Government to prove only that “the defendant misapplied — i. e;, converted — Title IV funds and that he did so knowingly and willfully.” Id., at 970. The Seventh Circuit's decision conflicts with the Eleventh Circuit’s decision in United States v. Kammer, 1 F. 3d 1161, 1165-1166 (1993), which held that § 1097(a) requires the Government to allege and prove that the defendant had an “intent to defraud” the United States. We granted certiorari to resolve this conflict, 519 U. S. 1108 (1997), and now affirm the Seventh Circuit’s judgment.
II
Our inquiry begins with the text of 20 U. S. C. § 1097(a) (1988 ed.). At the time of the offenses charged in the indictment, the measure provided in relevant part: “Any person who knowingly and willfully embezzles, misapplies, steals, or obtains by fraud, false statement, or forgery any funds, assets, or property provided or insured under this subchapter .. . shall be fined not more than $10,000 or imprisoned for not more than 5 years, or both.”
. The text of § 1097(a) does not include an “intent to defraud” state of mind requirement, and we ordinarily resist reading words or elements into a statute that do not appear on its face. In contrast, § 1097(d), enacted at the same time as § 1097(a), makes it a felony “knowingly and willfully” to “destroCy] or eoneea[l] any record relating to the provision of assistance under [Title IV] with intent to defraud the United States” (emphasis added). As this Court has reiterated: “ ‘[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)).
Despite the contrasting language of §§ 1097(a) and (d), Bates urges that an “intent to defraud” is an essential, albeit unexpressed, element of the offenses charged against him. For this argument, Bates relies primarily upon the District Court’s reasoning in this ease. The District Court, like the Eleventh Circuit in United States v. Kammer, 1 F. 3d, at 1165, looked to decisions interpreting 18 U. S. C. § 656, which proscribes -willful misapplication of bank funds. The Courts of Appeals unanimously agree that § 656 requires the Government to prove that the defendant acted with an intent to “injure or defraud” the bank or “deceive” a bank officer, even though the statute, on its face, contains no such element. In another case involving a different defendant named Bates, the Seventh Circuit explained why §656 included an “intent to injure or defraud” element:
“The current statutory language does not expressly require any proof of [fraudulent or injurious] intent. Originally the statute did require proof of intent to ‘injure or defraud’ the hank or ‘deceive’ a bank officer but these words were inadvertently dropped in the course of a technical revision of the criminal code. To avoid making every unauthorized loan by a bank officer a willful misapplication of bank funds, courts . . . read the missing words back into the section.” United States v. Bates, 852 F. 2d 212, 215 (1988).
Assuming, without deciding, that the Seventh Circuit’s reading of § 656 is correct, § 1097(a) never contained, as § 656 did, an “intent to defraud” requirement, a requirement present from the start and still contained in § 1097(d). In short, there is here neither text nor history warranting the construction of § 1097(a) that Bates urges us to adopt.
Nor does § 1097(a) set a “trap for the unwary,” as the Seventh Circuit suggested § 656 would if read to render felonious “every unauthorized loan by a bank officer.” See Bates, 852 F. 2d, at 215. Under the Seventh Circuit’s construction, § 1097(a) catches only the transgressor who intentionally exercises unauthorized dominion over federally insured student loan funds for his own benefit or for the benefit of a third party. “[Ijnnocent... maladministration of a business enterprise” or a use of funds that is simply “unwise,” see Brief for Petitioner 5, does not fit within that construction.
Bates also relies on a 1992 amendment to § 1097(a), which added “fails to refund” to the provision’s text. This change, Bates argues, establishes that the deliberate failure to return GSL funds, without an intent to defraud, was not previously an offense within § 1097(a)’s compass, but became one only under the statute’s current text. Congress’ 1992 amendment hardly means that § 1097(a) did not previously cover the conduct in question. Cf. Commissioner v. Estate of Sternberger, 348 U. S. 187, 194 (1955) (“Subsequent amendments have clarified and not changed th[e earlier] principle.”). The three added words — “fails to refund” — simply foreclose any argument that § 1097(a) does not reach the failure to make refunds; those words do not make the argument a persuasive one. See H. R. Conf. Rep. No. 102-630, p. 513 (1992) (“[F]ailure to pay refunds does constitute criminal misapplication under current law. Language is added in this bill merely as a clarification.”).
Bates finally urges that, to the extent § 1097(a) is ambiguous, the rule of lenity supports interpretation of the provision to include fraudulent intent as an essential element of the offense of knowing and willful misapplication of funds. As we have explained, however, nothing in the text, structure, or history of § 1097(a) warrants importation of an “intent to defraud” requirement into the misapplication proscription. The rule of lenity, therefore, does not come into play. See United States v. Wells, 519 U. S. 482, 499 (1997). The Government need not charge or prove that Bates aimed to injure or defraud anyone, nor is it a defense that Bates hoped the Jacksons, the students, or someone else would pay the amount due the lenders so that the federal fisc would suffer no loss.
* * *
For the reasons stated, the judgment of the Court of Appeals for the Seventh Circuit is
Affirmed.
In 1992, Congress amended the GSL program and renamed it the Federal Family Education Loan Program. Higher Education Amendments of 1992, Pub. L. 102-325, § 411(a)(1), 106 Stat. 510. Because the indictment in this case concerns only pre-1992 conduct, we refer to the program as the GSL program.
The Department of Education since has consolidated the requirements of §§668.22 and 682.606 into the current §668.22. See 59 Fed. Reg. 61211 (1994).
Higher Education Amendments of 1986, Pub. L. 99-498, § 490(a), 100 Stat. 1491.
United States v. Whitlock, 663 F. 2d 1094, 1102 (CADC 1980); United States v. Wester, 90 F. 3d 592, 595 (CA1 1996); United States v. Castiglia, 894 F. 2d 533, 537 (CA2), cert. denied, 497 U. S. 1004 (1990); United States v. Thomas, 610 F. 2d 1166, 1174 (CA3 1979); United States v. Duncan, 598 F. 2d 839, 858 (CA4), cert. denied, 444 U. S. 871 (1979); United States v. McCord, 33 F. 3d 1434, 1448 (CA5 1994), cert. denied sub nom. Haley v. United States, 515 U. S. 1132 (1995); United States v. Woods, 877 F. 2d 477, 479 (CA6 1989); United States v. Crabtree, 979 F. 2d 1261, 1266 (CA7 1992), cert. denied, 510 U. S. 878 (1993); United States v. Ness, 665 F. 2d 248, 249 (CA8 1981); United States v. Wolfswinkel, 44 F. 3d 782, 786 (CA9 1995); United States v. Evans, 42 F. 3d 586, 589 (CA10 1994); United States v. Morales, 978 F. 2d 650, 652 (CA11 1992).
Section 656 currently provides that any person “connected in any capacity with any Federal Reserve bank” or a related organization commits a felony if she “embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits” of the bank or related organization.
Ratzlaf v. United States, 510 U.S. 135 (1994), does not bear on our decision today. Ratzlaf decided only, in the particular statutory context of currency structuring, that knowledge of illegality was an element of 31 U. S. C. § 5322(a) as that provision was then framed. Ratzlaf did not involve the question presented here regarding § 1097(a), which is whether, in addition to a knowledge requirement, the Government must allege and prove an “intent to injure or defraud.”
The Seventh Circuit’s “working definition” of § 1097(a) reads:
“[Wjillful misapplication under § 1097(a) requires the government to allege and prove that the defendant consciously, voluntarily, and intentionally exercised unauthorized control or dominion over federally provided or guaranteed Title IV funds that interfered with the rights of the funds’ true owner(s), for the use and benefit of the defendant or a third person, while knowing that such an exercise of control- or dominion over the funds was a violation of the law.” 96 F. 3d, at 970.
The Government argues that the Seventh Circuit erred in reading § 1097(a) to require proof that a defendant knew his misapplication violated the law. Brief for United States 21-22. However, the Government did not challenge by cross-petition any part of the Seventh Circuit’s decision, so the question whether the defendant must know his conduct was a violation of the law is not before us.
As amended in 1992, § 1097(a) reads in relevant part:
“Any person who knowingly and willfully embezzles, misapplies, steals, obtains by fraud, false statement, or forgery, or fails to refund any funds, assets, or property provided or insured under this subchapter... shall be fined not more than $20,000 or imprisoned not more than 5 years, or both.” Higher Education Amendments of 1992, Pub. L. 102-325, §495,106 Stat. 631.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_numappel
|
5
|
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.
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 appellants in the case? Answer with a number.
Answer:
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sc_adminaction_is
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
CHAPMAN, COMMISSIONER, DEPARTMENT OF HUMAN RESOURCES OF TEXAS, et al. v. HOUSTON WELFARE RIGHTS ORGANIZATION et al.
No. 77-719.
Argued October 2, 1978
Decided May 14, 1979
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 623. White, J., filed an opinion concurring in the judgment, post, p. 646. Stewart, J., filed a dissenting opinion, in all but n. 2 of which Brennan and Marshall, JJ., joined, post, p. 672. Brennan and Marshall, JJ., filed a separate statement, post, p. 676.
David H. Young, Assistant Attorney General of Texas, argued the cause for petitioners in No. 77-719. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Steve Bicker-staff, Assistant Attorney General. Theodore A. Gardner argued the cause and filed briefs for petitioner in No. 77-5324.
Jeffrey J. Skarda argued the cause for respondents in No. 77-719. With him on the briefs were Henry A. Freedman, Michael B. Trister, and John Williamson. Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for respondents in No. 77-5324. With him on the brief were John J. Degnan, Attorney General, and Richard M. Hluchan, Deputy Attorney General.
Together with No. 77-5324, Gonzalez, Guardian v. Young, Director, Hudson County Welfare Board, et al., on certiorari to the United States Court of Appeals for the Third Circuit.
Briefs of amici curiae urging affirmance in No. 77-719 were filed by Solicitor General McCree and Sara Sun Beale for the United States; and by Robert B. O’Keefe for East Texas Legal Services, Inc.
Rornld Y. Amemiya, Attorney General, and Michael A. Lilly and Charleen M. Aina, Deputy Attorneys General, filed a brief for the State of Hawaii as amicus curiae in No. 77-719.
Mr. Justice BrenNAN and Mr. Justice Marshall do not join footnote 2.
Me. Justice Stevens
delivered the opinion of the Court.
The United States District Courts have Jurisdiction over civil actions claiming a deprivation of rights secured by the Constitution of the United States or by Acts of Congress providing for equal rights or for the protection of civil rights, including the right to vote. The question presented by these cases is whether that jurisdiction encompasses a claim that a state welfare regulation is invalid because it conflicts with the Social Security Act. We conclude that it does not.
In the Social Security Amendments of 1967, Congress authorized partial federal funding of approved state programs providing emergency assistance for certain needy persons. In February 1976, Julia Gonzalez, the petitioner in No. 77-5324, requested the Hudson County, N. J., Welfare Board to pay her $163 in emergency assistance funds to cover her rent and utility bills. The Board denied her request because petitioner and her children were not “in a state of homelessness” as required by the relevant New Jersey regulations.
Petitioner brought suit in the United States District Court for the District of New Jersey alleging that the emergency payment was “necessary to avoid destitution” within the meaning of § 406 (e)(1) of the federal Social Security Act, and she was therefore entitled to the payment notwithstanding the more stringent New Jersey regulation. In her federal complaint she sought damages of $163 and an injunction commanding the New Jersey Welfare Director to conform his administration of the State’s emergency assistance program to federal statutory standards. In essence, petitioner claimed that the New Jersey officials had deprived her of a right to emergency assistance protected by §406 (e)(1) of the Social Security Act.
The District Court held that the complaint stated a claim under 42 U. S. C. § 1983. Without deciding whether the “secured by the Constitution” language in § 1343 (3) should be construed to include Supremacy Clause claims, the District Court concluded that it had jurisdiction under both subparagraphs (3) and (4) of § 1343. But in doing so, the court did not explain whether it was § 1983 or § 406 (e) (1) of the Social Security Act that it viewed as the Act of Congress securing “equal rights” or “civil rights.” On the merits, the District Court found no conflict between the state regulation and the federal statute and entered summary judgment for respondents.
The Court of Appeals for the Third Circuit did not address the merits because it concluded that the District Court should have dismissed the complaint for want of jurisdiction. In reaching this conclusion, the Court of Appeals first noted that § 1983 “is not a jurisdictional statute; it only fashions a remedy.” 560 F. 2d 160, 164 (1977). Nor could jurisdiction be founded on 28 U. S. C. § 1331, the general federal-question jurisdictional statute, since the amount in controversy did not exceed $10,000. The court recognized that when a constitutional claim is of sufficient substance to support federal jurisdiction, a district court has power to consider other claims which might not provide an independent basis for federal jurisdiction. But it concluded that the constitutional claim must involve more than a contention that the Supremacy Clause requires that a federal statute be given effect over conflicting state law. It then went on to hold that the Social Security Act is not an Act of Congress securing either “equal rights” or “civil rights” as those terms are used in § 1343. And those terms, the court concluded, limit the grant of federal jurisdiction conferred by § 1343 even if § 1983 creates a remedy for a broader category of statutory claims.
The petitioners in No. 77-719 are Commissioners of the Texas Department of Human Resources, which administers the State’s program of Aid to Families with Dependent Children (AFDC). Respondents represent a class of AFDC recipients who share living quarters with a nondependent relative. Under the Texas regulations, the presence in the household of a nondependent person results in a reduction in the level of payments to the beneficiaries even if their level of actual need is unchanged. In a suit brought in the United States District Court for the Southern District of Texas, respondents claimed that the Texas regulations violate § 402 (a)(7) of the Social Security Act, 42 U. S. C. § 602 (a)(7), and the federal regulations promulgated pursuant thereto.
The District Court upheld the Texas regulations. While respondents’ appeal was pending, this Court decided Van Lare v. Hurley, 421 U. S. 338. On the-authority of that case, the Court of Appeals for the Fifth Circuit reversed. Following earlier Fifth Circuit cases, the Court of Appeals concluded that federal jurisdiction was conferred by the language in 28 U. S. C. § 1343 (4) describing actions seeking relief “under any Act of Congress providing for the protection of civil rights....” The court reasoned that statutory rights concerning food and shelter are “ ‘rights of an essentially personal nature,’ ” Houston Welfare Rights Org. v. Vowell, 555 F. 2d 1219, 1221 n. 1 (1977); that 42 U. S. C. § 1983 provides a remedy which may be invoked to protect such rights; and that § 1983 is an Act of Congress providing for the protection of civil rights within the meaning of that jurisdictional grant.
We granted certiorari to resolve the conflict between that conclusion and the holding of the Third Circuit in No. 77-5324. 434 U. S. 1061. We have previously reserved the jurisdictional question we decide today, see Hagans v. Lavine, 415 U. S. 528, 533-534, n. 5. We preface our decision with a review of the history of the governing statutes.
I
Our decision turns on the construction of the two jurisdictional provisions, 28 U. S. C. §§ 1343 (3) and (4), and their interrelationship with 42 U. S. C. § 1983 and the Social Security Act. As in all cases of statutory construction, our task is to interpret the words of these statutes in light of the purposes Congress sought to serve.
Section 1 of the Civil Rights Act of 1871 is the source of both the jurisdictional grant now codified in 28 U. S. C. § 1343 (3) and the remedy now authorized by 42 U. S. C. § 1983. Section 1 authorized individual suits in federal court to vindicate the deprivation, under color of state law, “of any rights, privileges, or immunities secured by the Constitution of the United States.” No authorization was given for suits based on any federal statute.
In 1874, Congress enacted the Revised Statutes of the United States. At that time, the remedial and jurisdictional provisions of § 1 were modified and placed in separate sections. The words “and laws,” as now found in § 1983, were included in the remedial provision of Rev. Stat. § 1979, and two quite different formulations of the jurisdictional grant were included in Rev. Stat. §§ 563 and 629. The former granted the district courts jurisdiction of all actions to redress a deprivation under color of state law of any right secured by the Constitution or “by any law of the United States.” The latter defined the jurisdiction of the circuit courts and included the limiting phrase — “by any law providing for equal rights” — which is now found in § 1343 (3).
In the Judicial Code of 1911, Congress abolished circuit courts and transferred their authority to the district courts. The Code’s definition of the jurisdiction of the district courts to redress the deprivation of civil rights omitted the broad language referring to “any law of the United States” which had defined district court jurisdiction under § 563, and provided instead for jurisdiction over claims arising under federal laws “providing for equal rights” — the language which had been used to describe circuit court jurisdiction under § 629, and which is now a part of § 1343 (3). No significant change in either the remedial or jurisdictional language has been made since 1911.
Subsection 4 of § 1343, providing jurisdiction for claims “under any Act of Congress providing for the protection of civil rights, including the right to vote,” is of more recent origin. Part III of the Civil Rights Act of 1957, as proposed, authorized the Attorney General to institute suits for injunc-tive relief against conspiracies to deprive citizens of the civil rights specified in 42 U. S. C. § 1985, which includes voting rights. Part III conferred jurisdiction on the United States district courts to entertain proceedings instituted pursuant to this section of the Act. While the substantive authorization of suits by the Attorney General was defeated, the amendment of § 1343, which had been termed a technical amendment to comply with the authority conferred by Part III, was enacted into law.
With the exception of this most recent enactment, the legislative history of the provisions at issue in these cases ultimately provides us with little guidance as to the' proper resolution of the question presented here. Section 1 of the 1871 Act was the least controversial provision of that Act; and what little debate did take place as to § 1 centered largely on the question of what protections the Constitution in fact afforded. The relevant changes in the Revised Statutes were adopted virtually without comment, as was the definition of civil rights jurisdiction in the 1911 Code. The latter provision was described as simply merging the existing jurisdiction of the district and circuit courts, a statement which may be read either as reflecting a view that the broader “and laws” language was intended to be preserved in the more limited “equal rights” language or as suggesting that “and laws” was itself originally enacted with reference to laws providing for equal rights, and was never thought to be any broader.
Similar ambiguity is found in discussions of the basic policy of the legislation. While there is weight to the claim that Congress, from 1874 onward, intended to create a broad right of action in federal court for deprivations by a State of any federally secured right, it is also clear that the prime focus of Congress in all of the relevant legislation was ensuring a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto.
We cannot say that any of these arguments is ultimately right or wrong, or that one policy is more persuasive than others in reflecting the intent of Congress. It may well be that, at least as to § 1343 (3), the Congresses that enacted the 1871 Act and its subsequent amendments never considered the question of federal jurisdiction of claims arising under the broad scope of federal substantive authority that emerged many years later. This does not mean that jurisdiction cannot be found to encompass claims nonexistent in 1871 or 1874, but it cautions us to be hesitant in finding jurisdiction for new claims which do not clearly fit within the terms of the statute.
II
The statutory language suggests three different approaches to the jurisdictional issue. The first involves a consideration of the words “secured by the Constitution of the United States” as used in § 1343. The second focuses on the remedy authorized by § 1983 and raises the question whether that section is a statute that secures “equal rights” or “civil rights” within the meaning of § 1343. The third approach makes the jurisdictional issue turn on whether the Social Security Act is a statute that secures “equal rights” or “civil rights.” We consider these approaches in turn.
1. The Supremacy Clause
Under § 1343 (3), Congress has created federal jurisdiction of any civil action authorized by law to redress the deprivation under color of state law “of any right, privilege or immunity secured [1] by the Constitution of the United States or [2] by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” Claimants correctly point out that the first prepositional phrase can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does “secure” federal rights by according them priority whenever they come in conflict with state law. In that sense all federal rights, whether created by treaty, by statute, or by regulation, are “secured” by the Supremacy Clause.
In Swift & Co. v. Wickham, 382 U. S. 111, the Court was confronted with an analogous choice between two interpretations of the statute defining the jurisdiction of three-judge district courts. The comprehensive language of that statute, 28 U. S. C. § 2281 (1970 ed.), could have been broadly read to encompass statutory claims secured by the Supremacy Clause or narrowly read to exclude claims that involve no federal constitutional provision except that Clause. After acknowledging that the broader reading was consistent not only with the statutory language but also with the policy of the statute, the Court accepted the more restrictive reading. Its reasoning is persuasive and applicable to the problems confronting us in this case.
“This restrictive view of the application of § 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute 'upon the ground of the unconstitutionality of such statute.’ Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause, the words 'upon the ground of the unconstitutionality of such statute’ would appear to be superfluous unless they are read to exclude some types of such injunctive suits. For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court.” Swift & Co. v. Wickham, supra, at 126-127 (footnotes omitted).
Just as the phrase in § 2281 — “upon the ground of the unconstitutionality of such statute” — would have been superfluous unless read as a limitation on three-judge-court jurisdiction, so is it equally clear that the entire reference in § 1343 (3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause. More importantly, the additional language which describes a limited category of Acts of Congress — -those “providing for equal rights of citizens” — plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims.
Thus, while we recognize that there is force to claimants’ argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase “secured by the Constitution,” it would make little sense for Congress to have drafted the statute as it did if it had intended to confer jurisdiction over every conceivable federal claim against a state agent. In order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim “secured by the Constitution” within the meaning of § 1343 (3).
2. Section 1983
Claimants next argue that the “equal rights” language of § 1343 (3) should not be read literally or, if it is, that § 1983, the source of their asserted cause of action, should be considered an Act of Congress “providing for equal rights” within the meaning of § 1343 (3) or “providing for the protection of civil rights” within § 1343 (4). In support of this position, they point to the common origin of §§ 1983 and 1343 (3) in the Civil Rights Act of 1871 and this Court’s recognition that the latter is the jurisdictional counterpart of the former. Since broad language describing statutory claims was used in both provisions during the period between 1874 and 1911 and has been retained in § 1983, and since Congress in the Judicial Code of 1911 purported to be making no changes in the existing law as to jurisdiction in this area, the “equal rights” language of § 1343 (3) must be construed to encompass all statutory claims arising under the broader language of § 1983. Moreover, in view of its origin in the Civil Rights Act of 1871 and its function in modern litigation, § 1983 does “provid [e] for the protection of civil rights” within the meaning of § 1343 (4).
In practical effect, this argument leads to the same result as claimants’ Supremacy Clause argument: jurisdiction over all challenges to state action based on any federal ground. Although the legislative history does not forbid this result, the words and structure of the statute, as well as portions of the legislative history, support a more limited construction.
The common origin of §§ 1983 and 1343 (3) unquestionably implies that their coverage is, or at least originally was, coextensive. It is not, however, necessary in this case to decide whether the two provisions have the same scope. For even if they do, there would still be the question whether the “and laws” language in § 1983 should be narrowly read to conform with the “equal rights” language in § 1343 (3), or, conversely, the latter phrase should be broadly read to parallel the former. And, in all events, whether or not we assume that there is a difference between “any law of the United States” on the one hand and “any Act of Congress providing for equal rights” on the other, the fact is that the more limited language was used when Congress last amended the jurisdictional provision. In order to construe the broad language of § 1983 to cover any statutory claim, and at the same time to construe the language of § 1343 (3) as coextensive with such a cause of action, it would be necessary to ignore entirely Congress’ most recent limiting amendment and the words of the provision as currently in force.
We cannot accept claimants’ argument that we should reach this result by holding that § 1983 is an Act of Congress “providing for equal rights” within the meaning of § 1343 (3). Unlike the 1866 and 1870 Acts, § 1 of the Civil Eights Act of 1871 did not provide for any substantive rights — equal or otherwise. As introduced and enacted, it served only to ensure that an individual had a cause of action for violations of the Constitution, which in the Fourteenth Amendment embodied and extended to all individuals as against state action the substantive protections afforded by § 1 of the 1866 Act. No matter how broad the § 1 cause of action may be, the breadth of its coverage does not alter its procedural character. Even if claimants are correct in asserting that § 1983 provides a cause of action for all federal statutory claims, it remains true that one cannot go into court and claim a “violation of § 1983” — -for § 1983 by itself does not protect anyone against anything. As Senator Edmunds recognized in the 1871 debate: “All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; they are based upon the right of the citizen. The act only gives a remedy.”
Under § 1343 (3), a civil action must be both “authorized by law” and brought to redress the deprivation of rights “secured by the Constitution of the United States or by any Act of Congress providing for equal rights.” Section 1983, when properly invoked, satisfies the first requirement: It ensures that the suit will not be dismissed because not “authorized by law.” But it cannot satisfy the second, since by its terms, as well as its history, it does not provide any rights at all.
We reach a similar conclusion with respect to the argument that § 1983 is a statute “providing for the protection of civil rights, including the right to vote.” Standing alone, § 1983 clearly provides no protection for civil rights since, as we have just concluded, § 1983 does not provide any substantive rights at all. To be sure, it may be argued that § 1983 does in some sense “provid[e] for the protection of civil rights” when it authorizes a cause of action based on the deprivation of civil rights guaranteed by other Acts of Congress. But in such cases, there is no question as to jurisdiction, and no need to invoke § 1983 to meet the “civil rights” requirement of § 1343 (4); the Act of Congress which is the actual substantive basis of the suit clearly suffices to meet the requisite test. It is only when the underlying statute is no t a civil rights Act that § 1983 need be invoked by those in claimants’ position to support jurisdiction. And in such cases, by hypothesis, § 1983 does not “provid[e] for the protection of civil rights.”
To construe § 1343 (4), moreover, as encompassing all federal statutory suits, as claimants here propose, would seem plainly inconsistent with the congressional intent in passing that statute. As noted earlier, the provision’s primary purpose was to ensure federal-court jurisdiction oyer suits which the bill authorized the Attorney General to bring against conspiracies to deprive individuals of the civil rights enumerated in 42 U. S. C. § 1985. The statute, of course, is broader than that: It encompasses suits brought by private individuals as well, and thus retained some significance even after the provisions authorizing suit by the Attorney General were defeated. But to the extent that § 1343 (4) was thought to expand existing federal jurisdiction, it was only because it does not require that the claimed deprivation be “under color of any State law.” One would expect that if Congress sought not only to eliminate any state-action requirement but also to allow jurisdiction without respect to the amount in controversy for claims which in fact have nothing to do with “civil rights/’ there would be some indication of such an intent. But there is none, either in the legislative history or in the words of the statute itself.
3. The Social Security Act
It follows from what we have said thus far that § 1343 does not confer federal jurisdiction over the claims based on the Social Security Act unless that Act may fairly be characterized as a statute securing “equal rights” within § 1343 (3) or “civil rights” within § 1343 (4). The Social Security Act provisions at issue here authorize federal assistance to participating States in the provision of a wide range of monetary benefits to needy individuals, including emergency assistance and payments necessary to provide food and shelter. Arguably, a statute that is intended to provide at least a minimum level of subsistence for all individuals could be regarded as securing either “equal rights” or “civil rights.” We are persuaded, however, that both of these terms have a more restrictive meaning as used in the jurisdictional statute.
The Social Security Act does not deal with the concept of “equality” or with the guarantee of “civil rights,” as those terms are commonly understood. The Congress that enacted § 1343 (3) was primarily concerned with providing jurisdiction for cases dealing with racial equality; the Congress that enacted § 1343 (4) was primarily concerned with providing jurisdiction for actions dealing with the civil rights enumerated in 42 U. S. C. § 1985, and most notably the right to vote. While the words of these statutes are not limited to the precise claims which motivated their passage, it is inappropriate to read the jurisdictional provisions to encompass new claims which fall well outside the common understanding of their terms.
Our conclusion that the Social Security Act does not fall within the terms of either § 1343 (3) or (4) is supported by this Court’s construction of similar phrases in the removal statute, 28 U. S. C. § 1443. The removal statute makes reference to “any law providing for the equal civil rights of citizens” and “any law providing for equal rights.” In construing these phrases in Georgia v. Rachel, 384 U. S. 780, this Court concluded:
“The present language ‘any law providing for... equal civil rights’ first appeared in § 641 of the Revised Statutes of 1874. When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act — ‘rights secured to them by the first section of this act.’ The new language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress’ choice of the open-ended phrase ‘any law providing for... equal civil rights’ was clearly appropriate to permit removal in cases involving ‘a right under’ both existing and future statutes that provided for equal civil rights.
“There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of ‘law’ to which the removal section referred. In spite of the potential breadth of the phrase ‘any law providing for... equal civil rights,’ it seems clear that in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866....
“... As the Court of Appeals for the Second Circuit has concluded, § 1443 ‘applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights....’ ‘When the removal statute speaks of “any law providing for equal rights,” it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U. S. C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.’ New York v. Galamison, 342 F. 2d 255, 269, 271. See also Gibson v. Mississippi, 162 U. S. 565, 585-586; Kentucky v. Powers, 201 U. S. 1, 39-40; City of Greenwood v. Peacock, [384 U. S. 808,] 825.” Id., at 789-790, 792 (footnotes omitted).
In accord with Georgia v. Rachel, the Courts of Appeals have consistently held that the Social Security Act is not a statute providing for “equal rights.” See Andrews v. Maher, 525 F. 2d 113 (CA2 1975); Aguayo v. Richardson, 473 F. 2d 1090, 1101 (CA2 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U. S. 1146 (1974). We endorse those holdings, and find that a similar conclusion is warranted with respect to § 1343 (4) as well. See McCall v. Shapiro, 416 F. 2d 246, 249 (CA2 1969).
We therefore hold that the District Court did not have jurisdiction in either of these cases. Accordingly, the judgment in No. 77-5324 is affirmed, and the judgment in No. 77-719 is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
“(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” 28 U. S. C. §§ 1343 (3) and (4).
Jurisdiction under § 1343 (4), it should be noted, is not limited to actions against state officials or individuals acting under color of state law.
§ 206, 81 Stat. 893; see 42 U. S. C. § 606 (e) (1). The program is fully described in Quern v. Mandley, 436 U. S. 725.
“[Petitioner] resides with her two children in Jersey City, New Jersey. Each month, she receives $235.00 under the Aid to Families with Dependent Children program (AFDC), 42 U. S. C. § 601 et seq., as well as $157.00 under the Social Security Administration’s disability program for her one retarded son. On February 2, 1976, Gonzalez received and cashed both checks at a neighborhood food market. Upon leaving the store, she was accosted by a robber who stole the cash. The following day she explained her situation to the Hudson County Welfare Board, requesting $163.00 in emergency assistance funds to cover her rent and utility bills.” 560 F. 2d 160, 163 (CA3 1977).
“When because of an emergent situation over which they have had no control or opportunity to plan in advance, the eligible unit is in a state of homelessness; and the County Welfare Board determines that the providing of shelter and/or food and/or emergency clothing, and/or minimum essential house furnishings are necessary for health and safety, such needs may be recognized in accordance with the regulations and limitations in the following sections.” N. J. Admin. Code § 10:82-5.12 (1976).
Section 406 (e)(1), as set forth in 42 U. S. C. § 606 (e)(1), provides:
“The term 'emergency assistance to needy families with children' means any of the following, furnished for a period not in excess of 30 days in any 12-month period, in the ease of a needy child under the age of 21 who is (or, within such period as may be specified by the Secretary, has been) living with any of the relatives specified in subsection (a) (1) of this section in a place of residence maintained by one or more of such relatives as his or their own home, but only where such child is without available resources, the payments, care, or services involved are necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution or need for living arrangements did not arise because such child or relative refused without good cause to accept employment or training for employment—
“(A) money payments, payments in kind, or such other payments as the State agency may specify with respect to, or medical care or any other type of remedial care recognized under State law on behalf of, such child or any other member of the household in which he is living, and “(B) such services as may be specified by the Secretary;
“but only with respect to a State whose State plan approved under section 602 of this title includes provision for such assistance.”
418 F. Supp. 566, 569 (1976).
Section 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Article VI, cl. 2, of the United States Constitution provides:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
560 F. 2d, at 169.
Section 1331 (a) provides:
“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States, except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.”
See, e. g., King v. Smith, 392 U. S. 309; Townsend v. Swank, 404 U. S. 282.
45 CFR, §§ 233.20 (a) (3) (ii) (C), 233.90 (a) (1974).
Houston Welfare Rights Org. v. Vowell, 391 F. Supp. 223 (1975).
Houston Welfare Rights Org. v. Vowell, 555 F. 2d 1219 (1977).
It will be noted that the Court of Appeals did not hold that the Social Security Act was itself an Act of Congress of the kind described in the jurisdictional statute.
The first section of “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes” reads as follows:
“That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law* statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same -rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled ‘
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_petitioner
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174
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SECURITY SERVICES, INC. v. KMART CORP.
No. 93-284.
Argued February 28, 1994
Decided May 16, 1994
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 444. Thomas, J., post, p. 444, and Ginsburg, J., post, p. 455, filed dissenting opinions.
Paul O. Taylor argued the cause and filed briefs for petitioner.
William J. Augello argued the cause for respondent. With him on the brief was Alice I. Buckley.
John F. Manning argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General Days, Deputy Solicitor General Wallace, Michael R. Dreeben, Henri F. Rush, and Ellen D. Hanson.
Joseph L. Steinfeld, Jr., Robert B. Walker, John T. Siegler, and Scott H. Lyon filed a brief for Overland Express, Inc., as amicus curiae urging reversal.
Frederick L. Wood, Nicholas J. DiMichael, and Richard D. Fortin filed a brief for the National Industrial Transportation League as amicus curiae urging affirmance.
Justice Souter
delivered the opinion of the Court.
This case presents the question whether a motor carrier in bankruptcy may recover for undercharges based on tariff rates that are void as a matter of law under the Interstate Commerce Commission’s regulations. We hold that the carrier may not rely on the filed but void tariff.
I
On August 20, 1984, petitioner Security Services, Inc., (then known as Riss International Corp.) filed with the Interstate Commerce Commission (Commission or ICC) a mileage (or distance) rate tariff having an effective date 30 days later. The tariff was received, accepted, and filed, and was never rejected by the ICC. Although the tariff specified rates to be charged per mile of carriage, it was not complete in itself, for it included no list of distances or map on which a shipper could rely in calculating charges for a given shipment. For the distance component of this mileage-based tariff, petitioner relied upon a Household Goods Carriers’ Bureau (HGCB) Mileage Guide, its supplements, and subsequent issues. HGCB is itself not a carrier, but a publisher of distance guides for use in tariff filings. The Mileage Guide is a 565-page volume of large format, which specifies the distances in miles between various points of origin and destination, and contains maps and supplemental rules. The Mileage Guide refers shippers to a separate HGCB tariff and its supplements, filed with the ICC, for a list of the carriers who are “participants” in the Mileage Guide. A participant is a carrier who pays HGCB a nominal fee and issues it a valid power of attorney. The first page of HGCB’s Mileage Guide states that it “MAY NOT BE EMPLOYED BY A CARRIER AS A GOVERNING PUBLICATION FOR THE PURPOSE OF DETERMINING INTERSTATE TRANSPORTATION RATES BASED ON MILEAGE OR DISTANCE, UNLESS.CARRIER IS SHOWN AS A PARTICIPANT IN THE ABOVE NAMED TARIFF.” HGCB, Mileage Guide No. 12, p. 1 (Dec. 1982). HGCB filed a tariff supplement to its Mileage Guide, effective February 19, 1985, listing participants and canceling Riss’s participation in the Mileage Guide for failure to pay the nominal participation fee to HGCB. HGCB treats a power of attorney issued to it as void if not renewed by remitting the participation fee within a reasonable time after cancellation. Riss did not renew.
On April 17,1986, Riss contracted with respondent Kmart Corporation to transport Kmart’s goods at rates specified in the contract, and from November 3, 1986, to December 29, 1989, Riss transported goods for Kmart under the contract. Riss billed, and Kmart paid, at the contract rate. In November 1989, Riss filed a Chapter 11 bankruptcy petition and while undergoing reorganization became Security Services. As debtor-in-possession, Security Services billed Kmart for undercharges (and interest) it was allegedly owed, based on the difference between the contract rate Kmart paid and the tariff rates that Riss assertedly had on file with the ICC. Security Services argued that under the Interstate Commerce Act’s filed rate doctrine, Kmart was liable for the tariff rates filed with the ICC, regardless of any contract rate negotiated. Kmart refused to pay, and this suit ensued.
The District Court for the Eastern District of Pennsylvania granted summary judgment for Kmart on the ground that Security Services had no valid tariff on file with the ICC (without which it could not collect for undercharges), because HGCB had canceled its participation in the Mileage Guide. The Court of Appeals for the Third Circuit affirmed. 996 F. 2d 1516 (1993). The court reasoned that under ICC regulations Riss’s tariff was void for nonparticipation in the HGCB Mileage Guide, that Riss had not filed any mileages of its own to replace its canceled participation, and that the consequently incomplete and void tariff could not support a claim for undercharges. Id., at 1524. The court took the position that, although the ICC regulations operated retroactively to void a filed tariff, that retroactive application was permissible under this Court’s test in ICC v. American Trucking Assns., Inc., 467 U. S. 354 (1984). 996 F. 2d, at 1524-1526. Finally, the court rejected Security Services’s argument that its failure to participate formally in the HGCB Mileage Guide was a mere technical defect excused by its substantial compliance with the rule requiring it to file its rates with the Commission. Id., at 1526.
We granted certiorari, 510 U. S. 930 (1993), to resolve a Circuit conflict over the validity of the ICC void-fornonparticipation regulation, and now affirm.
II
A motor carrier subject to the Interstate Commerce Act must publish its rates in tariffs filed with the ICC. 49 U. S. C. §§ 10761(a), 10762(a)(1). The carrier “may not charge or receive a different compensation for that transportation... than the rate specified in the tariff....” § 10761(a). We have held these provisions “to create strict filed rate requirements and to forbid equitable defenses to collection of the filed tariff.” Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 127 (1990); accord, Reiter v. Cooper, 507 U. S. 258, 266 (1993); Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915) (“Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed”). The purpose of the filed rate doctrine is “to ensure that rates are both reasonable and nondiscriminatory,” Maislin, supra, at 119 (citing 49 U.S.C. §§ 10101(a), 10701(a), 10741(b) (1982 ed.)), and failure to charge or pay the filed rate may result in civil or criminal sanctions. See 49 U. S. C. §§ 11902-11904.
The ICC has authority to “prescribe the form and manner” of tariff filing, § 10762(b)(1), and the information to be included in tariffs beyond any matter required by statute, § 10762(a)(1). Each carrier is responsible for ensuring that it has rates on file with the ICC. §§ 10702, 10762. Under ICC regulations, a carrier has some choice about the form in which to state its rates, one possibility being a rate based on mileage. A mileage rate has two components: the rate per mile and distances between shipping points. 49 CFR § 1312.30 (1993). A carrier may file the distance portion of the rate by listing in its own tariff the distances between all relevant points, by referring to a map attached to its tariff, or by referring to a separately filed distance guide, such as the HGCB Mileage Guide. § 1312.30(c)(1). Petitioner does not dispute that distance guides are themselves tariffs. Brief for Petitioner 9, n. 4. A carrier may refer to a tariff filed by another carrier or by an agent only by formally “participating” in the referenced tariff, which may be done only by issuing a power of attorney (or concurrence) to the other carrier or agent. 49 CFR §§ 1312.4(d), 1312.10, 1312.27(e) (1993). The Commission’s void-for-nonparticipation regulation provides that “a carrier may not participate in a tariff issued in the name of another carrier or an agent unless a power of attorney or concurrence has been executed. Absent effective concurrences or powers of attorney, tariffs are void as a matter of law.” § 1312.4(d). Tariff agents like HGCB are required to identify carriers participating in their tariffs, by listing their names either in the tariff containing the mileage guide itself, or in a separate tariff. §§ 1312.13(c), 1312.25. The listings are meant to be kept reasonably current, but are effective until changed. “Revocation or amendment of the power of attorney should be reflected through lawfully published tariff revisions effective concurrently. In the event of failure to so revise the applicable tariff or tariffs, the rates in such tariff or tariffs will remain applicable until lawfully changed.” § 1312.10(a). That is, cancellation of a power of attorney (whether by carrier or agent) is accomplished by filing or amending a tariff. §§ 1312.10(a), 1312.25(d), 1312.17(b). Until such filing or amendment, the carrier’s reference to the agent’s tariff remains effective, § 1312.10(a); once the agent’s tariff is filed or amended to note cancellation of the carrier’s participation, the carrier’s tariff is void as a matter of law (absent additional filing by the carrier). See § 1312.4(d). As the ICC explained, once cancellation of participation is published, as it was here, the mileage-based tariff is incomplete, and “eease[s] to satisfy the fundamental purpose of tariffs; to disclose the freight charges due to the carrier.” Jasper Wyman & Son — Petition for Declaratory Order — Certain Rates and Practices of Overland Express, Inc., 8 I. C. C. 2d 246,258 (1992) (applying void-for-nonparticipation regulation), petition for review granted, Overland Express, Inc. v. ICC, 996 F. 2d 356 (CADC 1993).
Congress passed the Motor Carrier Act of 1980, 94 Stat. 793, to encourage competition in the industry. In response to this enactment and changes in the carrier market, the ICC simplified its tariff filing rules, as by eliminating the requirement that the actual powers of attorney be filed with the ICC. See 48 Fed. Reg. 31265, 31266 (1983); see also Revision of Tariff Regulations, All Carriers, 1 I. C. C. 2d 404, 408 (1984). The ICC’s rule that “participation” is required, however, remained in force. See id., at 434; see also 48 Fed. Reg. 31266 (1983) (“The obligation to limit tariff publication to existing agency relationships remains, however, as a matter of law”). Many shippers and carriers nevertheless responded to the very changes in the market that prompted the ICC’s revision of its rules by ignoring the rates the carriers had filed with the ICC and instead negotiating rates for carriage lower than the filed rates. As a further result of competitive pressures, many carriers also went bankrupt. A number of trustees and debtors-in-possession then attempted to recover as undercharges the difference between the negotiated and filed rates. Since the market changes convinced the ICC that strict adherence to the filed rate doctrine was no longer necessary under some circumstances, Maislin, 497 U. S., at 121, the ICC decided to follow a new policy of determining, case by case, whether it would be an “unreasonable practice” under 49 U. S. C. § 10701 for a carrier (often by then bankrupt) to recover for undercharges from a shipper who had paid a negotiated, rather than filed, rate. See National Industrial Transportation League— Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 I. C. C. 2d 99, 104-108 (1986); 5 I. C. C. 2d 623, 628-634 (1989). In Maislin, we held that this ICC practice violated the core purposes of the Act, because “[b]y refusing to order collection of the filed rate solely because the parties had agreed to a lower rate, the ICC has permitted the very price discrimination that the Act by its terms seeks to prevent.” 497 U. S., at 130 (citing 49 U. S. C. § 10741). Thus, we held that any bankruptcy trustee or debtor-in-possession was entitled to recover for undercharges based on effective, filed rates.
Petitioner argues that the effect of the void-for-non-participation rule is to allow transactions to be governed by secretly negotiated rates, rather than the publicly filed rates mandated by the Act. Petitioner would thus have us see the ICC’s recent enforcement of its void-for-nonparticipation regulation as merely an attempt to evade Maislin and undermine the filed rate doctrine by keeping trustees or debtors-in-possession from recovering for undercharges.
The argument is an odd one. The filed rate requirement mandates that carriers charge the rates filed in a tariff. We held in Maislin, swpra, that the requirement was not subject to discretionary enforcement when raised against a shipper who had agreed with a carrier to a negotiated rate lower than the rate on file. When the carrier’s bankruptcy prompted second thoughts about the wisdom of the agreement, the carrier and its creditors obtained the benefit of the requirement. Here, as in Jasper Wyman, supra, the carrier seeks to escape its burden by recovering for undercharges even though in effect it had no rates on file because its tariff lacked an essential element. The filed rate rule applied here to bar the carrier’s recovery is the same rule that was applied to bar the shipper’s defense. Nor is the rule somehow more technical or less equitable when applied against Security Services. It can hardly be gainsaid that a carrier employing distance rates without purporting to be bound by stated distances would be just as well placed to discriminate among shippers by measuring with rubber instruments as it would be by charging shippers for a stated distance at mutable rates per mile. While some may debate in other forums about the wisdom of the filed rate doctrine, it is enough to say here that the carriers cannot have it both ways.
Ill
Petitioner is left to invoke the limitations on the ICC’s authority to declare a rate void retroactively, and the “technical defect” rule. Neither is availing.
A
The Court of Appeals believed, 996 F. 2d, at 1524-1526, as petitioner now argues, that the void-for-nonparticipation rule retroactively voids rates and is thus subject to the analysis we applied in American Trucking, 467 U. S., at 361-364, 367. See also Overland Express, 996 F. 2d, at 360. In American Trucking, we held that the Commission could retroactively void effective tariffs ab initio only if the action “furthers] a specific statutory mandate of the Commission” and is “directly and closely tied to that mandate.” 467 U. S., at 367. But the rule is not apposite here, for the void-fornonparticipation regulation does not apply retroactively. The ICC did not, as in American Trucking, void a rate for a period during which an effective rate was filed. The ICC’s regulations operate to void tariffs that would otherwise apply to future transactions, by providing that the rate becomes inapplicable when the tariff reference to the Mileage Guide is canceled, i. e., from the moment at which examination of the tariff filings would show that the carrier’s tariff is incomplete, 49 CFR § 1312.10(a) (1993), after which the shipper would be unable to rely on the incomplete tariff to calculate the applicable charges. Transactions occurring before cancellation of the power of attorney are governed by the filed rate; transactions occurring after cancellation would have no filed mileages to which a carrier’s per-mile tariff rates would apply to determine charges due. The regulation does not require any ICC “retroactive rejection” of a filed rate, or indeed any agency action at all. The regulation works like an expiration date on an otherwise valid tariff in voiding its future application, in accordance with § 1312.23(a). Neither regulation works a retroactive voiding. We thus disagree with the Court of Appeals for the District of Columbia Circuit, which held that once a tariff is in effect, a regulation that voids the tariff operates retroactively. Overland Express, supra, at 360.
Here, petitioner’s tariff reference to the HGCB Mileage Guide became void as a matter of law and its tariff filings incomplete on their face on February 19, 1985, when HGCB canceled its participation in the Mileage Guide by filing a supplemental tariff. The transactions with Kmart occurred after that date.
B
Nor does the “technical defect” rule apply here. Under our cases, neither procedural irregularity nor unreasonableness nullifies a filed rate; the shipper’s remedy for irregularity or unreasonable rates is damages. See, e. g., BerwindWhite Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371 (1914); Davis v. Portland Seed Co., 264 U. S. 403 (1924). In Berwind-White, the Court held that filed tariffs falling short of full compliance in stylistic matters were still “adequate to give notice” and so could support a carrier’s claim against a shipper for charges due. 235 U. S., at 375. In Davis, the effect of applying the carrier’s tariff violated a former statutory bar to charging less for a longer distance than for a shorter one over the same route, other things being equal. The Court rejected the position that the higher rate was void and the lower rate legally applicable, so that damages would depend upon the difference between the two, and held that the shipper’s remedy was instead to be measured by its actual damages from having been charged the higher rate as compared to a reasonable one. 264 U. S., at 424-426.
Unlike the shippers in the “technical defect” cases, the shipper here could not determine the carrier’s rates, since under the regulations, distance tariffs are incomplete once the carrier’s participation in the Mileage Guide has been canceled by the agent’s filing. See 49 CFR §§ 1312.4(d), 1312.10(a), 1312.30 (1993). We are dealing not with a complete tariff subject to some blemish independently remediable, but with an incomplete tariff insufficient to support a reliable calculation of charges. Security Services, however, questions the distinction by arguing that a shipper is unlikely to search for the list of participating carriers and to determine from the agent’s supplemental tariffs that a carrier’s participation has been canceled. Rather, a shipper is likely only to follow the reference in the carrier’s tariff to the HGCB Mileage Guide, and can fully calculate the applicable charges. But the likelihood or unlikelihood of a shipper’s actually reading all the applicable tariffs is simply irrelevant, for carriers and shippers alike are charged with constructive notice of tariff filings, Kansas City Southern R. Co. v. Carl, 227 U. S. 639,653 (1913); Reiter v. Cooper, 507 U. S., at 266, and the fact that shippers may take shortcuts through the filings cannot convert an incomplete tariff into a complete one. In sum, a tariff that refers to another tariff for essential information, which tariff in turn states that the carrier may not refer to it, does not provide the “adequate notice” of rates to be charged that our “technical defect” cases require.
IV
When a carrier relies on a mileage guide filed by another carrier or agent, under ICC regulations the carrier must participate in the guide by maintaining a power of attorney; when a carrier fails to maintain its power of attorney and its participation is canceled by its former agent’s filing of an appropriate tariff, the carrier’s tariff is void. Trustees in bankruptcy and debtors-in-possession may rely on the filed rate doctrine to collect for undercharges, Maislin Industries, U S., Inc. v. Primary Steel, Inc., 497 U. S. 116 (1990), but they may not collect for undercharges based on filed, but void, rates. The decision of the Court of Appeals is accordingly
Affirmed.
Compare Overland Express, Inc. v. ICC, 996 F. 2d 356 (CADC 1993); Security Services, Inc. v. P-Y Transp., Inc., 3 F. 3d 966 (CA6 1993); Brizendine v. Cotter & Co., 4 F. 3d 457 (CA71993), with the decision below, 996 F. 2d 1516 (CA3 1993); see also Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F. 2d 281 (CA8 1993); Freightcor Services, Inc. v. Vitro Packaging, Inc., 969 F. 2d 1563 (CA5 1992), cert, denied, 506 U. S. 1053 (1993).
Amicus Overland Express, Inc., contends that participation in mileage guides is not required, citing. Revision of Tariff Regulations, All Carriers, 1 I. C. C. 2d 404, 425 (1984). But the ICC has interpreted its rules to require such participation, Jasper Wyman & Son — Petition for Declaratory Order — Certain Rates and Practices of Overland Express, Inc., 8 I. C. C. 2d 246, 249-252 (1992) (applying void-for-nonparticipation regulation), petition for review granted, Overland Express, Inc. v. ICC, 996 F. 2d 356 (CADC 1993), and its interpretation of its own regulations is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation,” Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945). The ICC’s interpretation is neither.
The ICC has apparently had a similar rule for many decades. In Cancelation of Participation in Agency Tariffs, 4 Fed. Reg. 444
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_r_bus
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Petitioner, v. Honorable Fred M. WINNER, United States Chief District Judge for the District of Colorado, Respondent, Edward Alexander, Real Party in Interest.
No. 81-1961.
United States Court of Appeals, Tenth Circuit.
Dec. 9, 1981.
Joseph F. Dolan, U.S. Atty., and Charles H. Torres, Asst. U.S. Atty., Denver, Colo., for petitioner.
James W. Nearen, Jr., Denver, Colo., for Edward Alexander.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
The United States petitions for a writ of mandamus setting aside Judge Winner’s order granting criminal defendant Edward Alexander a new trial. Since the government may not directly appeal the trial judge’s order for a new trial, it seeks redress by way of a petition for a writ of mandamus.
Following a jury conviction for violation of 18 U.S.C. §§ 2, 1014, and 2314, Alexander filed posttrial motions to arrest judgment and to grant judgment of acquittal. From the government’s response to these motions, he learned that the government had failed to produce a grand jury transcript to which he was entitled under the Jencks Act, 18 U.S.C. § 3500(b). Alexander then filed an amended motion for new trial, alleging that the government violated the Jencks Act by not giving him the grand jury transcripts of all of Agent Thomas Rardin’s testimony. The omitted testimony allegedly conflicted with other grand jury testimony of Rardin which defendant’s counsel had received. The amended motion also argued that the government failed to prove substantive elements of the crime, the verdict was against the weight of the evidence, and the jury improperly disregarded the court’s instructions. At a hearing on the motion, Alexander’s counsel argued only the Jencks Act omission and the insufficiency of the evidence.
The trial judge granted the motion for new trial. He emphasized the government’s absolute duty to turn over Jencks Act and Brady materials, and stated that in the event of an omission, the court presumes the defendant was prejudiced. The government concedes the omission, but contends that it was harmless error and that the district judge failed to apply a harmless error test.
Defendant’s counsel argued that courts should refrain from speculating that the defense could not have effectively utilized a statement the government should have produced, see Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574 (1961), but he correctly acknowledged that courts apply the harmless error standard. See Goldberg v. United States, 425 U.S. 94, 111 n.21, 96 S.Ct. 1338, 1348 n.21, 47 L.Ed.2d 603 (1976); Killian v. United States, 368 U.S. 231, 243-44, 82 S.Ct. 302, 309-310, 7 L.Ed.2d 256 (1961); Rosenberg v. United States, 360 U.S. 367, 370-71, 79 S.Ct. 1231, 1233-1234, 3 L.Ed.2d 1304 (1959). In this Court defense counsel maintains that the trial judge implicitly found that the omission prejudiced Alexander and was not harmless error.
A fair reading of the judge’s comments in their overall context indicates the judge did not grant a new trial because of a belief that any Jencks Act omission requires it. At the hearing on the motion for new trial, government counsel argued that nothing in the undisclosed transcript could have aided Alexander in his defense. The colloquy indicating the judge’s view was as follows:
“MISS ROBERTS: But it was abundantly clear from a reading of those transcripts and from knowing the testimony in these cases that there was absolutely nothing in that transcript that could have been of any use to the defendant.
THE COURT: I don’t know.
MISS ROBERTS: And even Mr. Near-en—
THE COURT: There’s possible impeachment. I can see that argument in this case against this particular defendant viewed in the light most favorable to the government was the weakest case you had. You don’t know what would have tipped the scale in the mind of some juror. I don’t know.
This was a very, very, very close case. I agonized over the Motion for Judgment of Acquittal, and you don’t know what some juror might have done had there been just minimal impeachment of Mr. Rardin.
MISS ROBERTS: Your Honor, there is nothing that Mr. Nearen has stated in his motion and his memorandum that shows any grounds for anything that could be considered impeachment as to his client. He even states in his memorandum on this point the inconsistency between the two statements is clearly exculpatory as regards the defendant Robohm, and the failure to provide the testimony undoubtedly affected his ability to cross-examine. He doesn’t represent Mr. Robohm.
THE COURT: I know he doesn’t. But, Miss Roberts, you’ve never represented a defendant in your life. You don’t know how defense counsel can use that. It may not exculpate Mr. Alexander and it may just help Mr. Robohm, but it may in the mind of a juror weaken Mr. Rardin’s testimony.”
In his oral ruling granting the motion for a new trial, the judge stated:
“THE COURT: All right. The motion of the defendant Alexander for a new trial is granted. Fortunately, this does not mean a retrial of the long involved case involving Mr. Krown and Mr. Feeney.
18 U.S.C., Section 3500 says that the United States shall produce any statement of the witness. The United States didn’t do it. That’s it. I don’t think it was in bad faith. I think it was unfortunate.
The trouble with this whole case has been — one trouble — we’ve had different prosecutors on different defendants and now we have got somebody arguing the Motion for a New Trial who didn’t try the case because the person who did try it is on vacation. But this case was a very, very, very nip and tuck case and I don’t know what a jury might have done had there been any additional evidence.”
In the formal order denying the government’s motion for reconsideration, the judge stated:
“I ordered a new trial in this case. I did so because I think that the evidence in the case against this defendant is weak; that the slightest change in the testimony might change the result and that the interests of justice require a new trial. The government failed to comply with Brady, but that is not the only error on the part of the prosecution. I just don’t think that the defendant received a fair trial taking into account all of the surrounding facts and circumstances, including the many problems which have developed in the companion cases in which James Feeney and Kevin Krown are charged. Evidence vital to defendants has been held back, and the government must accept the consequences of its conscious decision to keep facts secret.”
Order of July 27, 1981.
Thus, the judge rejected the government’s suggestion that the defense could not have used to its benefit the undisclosed transcript. Notwithstanding the trial judge’s remarks that a showing of prejudice was unimportant, the judge’s emphasis on the closeness of the case suggests he considered whether the defendant had been prejudiced by the omission. If the trial judge had thought that a Jencks Act omission, without regard to its prejudicial effect, required granting a new trial, he would have had no reason to comment on the weakness of the government’s case and the possible use defendant’s counsel could have made of the witness’s inconsistent statements. Therefore we conclude that the trial judge applied the harmless error standard. As the judge observed, while the omitted testimony may not have been directly exculpatory, the defendant could have used it to impeach the witness. Therefore, we cannot say that in this case, characterized as “very close,” the omission was harmless error.
The Supreme Court has noted that we should be extraordinarily reluctant to grant mandamus in a criminal case when a new trial has been ordered:
“This is not to say that mandamus may never be used to review procedural orders in criminal cases. It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U.S. 241 [53 S.Ct. 129, 77 L.Ed. 283] (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129] (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal.”
Will v. United States, 389 U.S. 90, 97-98, 88 S.Ct. 269, 274-275, 19 L.Ed.2d 305 (1967) (emphasis added). Accord, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190-191, 66 L.Ed.2d 193, 197 (1980) (“A trial court’s ordering a new trial rarely, if ever, will justify the issuance of a writ of mandamus.”) To restrict the use of the writ to extraordinary circumstances, the Supreme Court has required that the party seeking issuance have no other means to attain the desired relief, and that the petitioner establish a “clear and indisputable” right to issuance of the writ. Id.
The government has failed to demonstrate a “clear and indisputable” right to issuance of the writ of mandamus. The petition is hereby denied.
. The jury found Alexander guilty of transporting worthless cashier’s checks in interstate commerce, and presenting or causing another to present them to a federally insured bank.
. The Jencks Act, 18 U.S.C. § 3500(b), generally requires that after a government witness has testified, upon defendant’s motion the government must disclose to the defendant any prior statement of a government witness relating to the subject matter of his or her testimony. These statements include a witness’s testimony before a grand jury.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963), the Supreme Court held that suppression of evidence “favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
. Denying a defendant’s motion for judgment of acquittal does not preclude a trial court from weighing the evidence to determine prejudice. After denial of defendant’s motion and return of a jury verdict, the trial court may consider again the sufficiency of the evidence if the defendant renews the motion for judgment of acquittal within seven days after the jury is discharged. Fed.R.Crim.P. 29(c).
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES v. HYDE
No. 96-667.
Argued April 15, 1997
Decided May 27, 1997
James A. Feldman argued the cause for the United States. With him on the briefs were Acting Solicitor General Del-linger, Acting Assistant Attorney General Richard, Deputy Solicitor General Dreeben, and Patty Merkamp Stemler.
Jonathan D. Soglin, by appointment of the Court, 519 U. S. 1106, argued the cause and filed a brief for respondent.
Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
Chief Justice Rehnquist
delivered the opinion of the Court.
Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced “if the defendant shows any fair and just reason.” After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his plea. We hold that in such circumstances a defendant may not withdraw his plea unless he shows a “fair and just reason” under Rule 32(e).
A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraud-related crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct.
That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent’s “application for permission to enter [a] plea of guilty.” After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated “guilty.”
The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the plea. The court therefore stated that it was accepting respondent’s guilty plea. It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report.
One month later, before sentencing and the District Court’s decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty plea. His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent’s claim of duress, and that respondent had not provided a “fair and just reason” for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty plea. The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment’s remaining four counts on the Government’s motion, and sentenced respondent to a prison term of 2Vz years.
The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. 92 F. 3d 779, 781 (1996). The court reasoned as follows: First, before a district court has accepted a defendant’s guilty plea, the defendant has an absolute right to withdraw that plea. Id., at 780 (citing United States v. Washman, 66 F. 3d 210, 212-213 (CA9 1995)). Second, the guilty plea and the plea agreement are “ ‘inextricably bound up together,’ ” such that the court’s deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty plea. 92 F. 3d, at 780 (quoting United States v. Cordova-Perez, 65 F. 3d 1552, 1556 (CA9 1995)). Combining these two propositions, the Court of Appeals held that “[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement.” 92 F. 3d, at 781.
The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United States v. Ewing, 957 F. 2d 115, 118-119 (CA4 1992); United States v. Ellison, 798 F. 2d 1102, 1106 (CA7 1986). We granted certiorari to resolve the conflict, 519 U. S. 1086 (1997), and now reverse.
To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea. Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.
The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: “Before accepting a plea of guilty . . . , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,” numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: “The court shall not accept a plea of guilty . . . without first, by addressing the defendant personally in open court, determining that the plea is voluntary.” The opening words of these two subdivisions are important: Together, they speak of steps a district court must take “[bjefore accepting a plea of guilty,” and without which it “shall not accept a plea of guilty” Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant’s guilty' plea. The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that “prerequisite” is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted.
Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals’ holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant’s request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that “the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.” Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement.
If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides:
“If the court rejects the plea agreement, the court shall ... advise the defendant personally ... that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea ... the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” Rule 11(e)(4) (emphasis added).
Thus, if the court rejects the agreement, the defendant can “then” withdraw his plea for any reason and does not have to comply with Rule 32(e)’s “fair and just reason” requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction.
Under the Court of Appeals’ holding, however, the defendant can withdraw his plea “for any reason or for no reason” even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only “then” is the defendant granted “the opportunity” to withdraw his plea. The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted “the opportunity to then withdraw” his plea. The Court of Appeals’ holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning.
Not only is the Court of Appeals’ holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the “fair and just reason” standard to Rule 32(e) in 1983, explained why this cannot be so:
“Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely ‘tentative,’ subject to withdrawal before sentence whenever the government cannot establish prejudice. ‘Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim. In fact, however, a guilty plea is no such trifle, but a “grave and solemn act,” which is “accepted only with care and discernment.’”” Advisory Committee’s Notes on Fed. Rule Crim. Proc. 32, 18 U. S. C. App., p. 794 (quoting United States v. Barker, 514 F. 2d 208, 221 (CADC 1975), in turn quoting Brady v. United States, 397 U. S. 742, 748 (1970)).
We think the Court of Appeals’ holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess.
The basis for the Court of Appeals’ decision was its prior statement in Cordova-Perez that “[t]he plea agreement and the [guilty] plea are inextricably bound up together.” 65 F. 3d, at 1556 (internal quotation marks omitted). This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are “bound up together” in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement.
But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government’s promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government’s promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts §628, p. 17 (I960).
If the Court of Appeals’ holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: “If a motion to withdraw a plea of guilty ... is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Under the Court of Appeals’ holding, the “fair and just reason” standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG §6Bl.l(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the “fair and just reason” standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one.
Respondent defends this cramped understanding of Rule 32(e) by arguing that the “fair and just reason” standard was meant to apply only to “fully accepted” guilty pleas, as opposed to “conditionally accepted” pleas — i. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the “fair and just reason” standard was derived from dictum in our pre-Rules opinion in Kercheval v. United States, 274 U. S. 220, 224 (1927), see Advisory Committee’s Notes on Rule 32, 18 U. S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see 274 U. S., at 223 (“A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence”). He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply.
We reject this somewhat tortuous argument. When the “fair and just reason” standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty plea. Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee’s Notes accompanying it attempted to draw a distinction between “fully accepted” and “conditionally accepted” guilty pleas. Instead, the Rule simply says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed.” Respondent’s speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves.
Respondent’s only other substantial argument in defense of the Court of Appeals’ holding relies on an interpretation of the Advisory Committee’s Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: “The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty.” This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee’s Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them.
The judgment of the Court of Appeals is therefore
Reversed.
See also Fed. Rule Crim. Proc. 11(f) (court should not enter judgment on an accepted guilty plea without confirming that the plea has a factual basis).
Under the Sentencing Guidelines, a district court is required to defer its decision about whether to accept a type A or type C agreement until after it has reviewed the presentence report, unless the court believes that a presentence report is not required. United States Sentencing Commission, Guidelines Manual §6Bl.l(c) (Nov. 1995) (USSG).
Respondent argues that it is unfair to bind the defendant to the terms of the plea agreement before the Government is so bound. He therefore argues that, as a policy matter, an interpretation of the Rules that results in such a differential treatment should be rejected. Even if respondent were correct in arguing that the defendant is bound before the Government is bound (a point we do not decide), the fact remains that our task here is not to act as policymaker, deciding how to make the Rules as fair as possible, but rather to determine what the Rules actually provide. Cf. Carlisle v. United States, 517 U. S. 416, 444-445 (1996) (district court may not use “inherent supervisory power” to correct perceived unfairness in application of Fed. Rule Crim. Proc. 29(a)’s 7-day time limit for filing motions for judgment of acquittal, if use of the power would “circumvent or conflict with the Federal Rules of Criminal Procedure”).
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_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
UNITED STATES v. A. BENTLEY & SONS CO.
(Circuit Court of Appeals, Sixth Circuit.
January 6, 1927.)
No. 4655.
I. Pleading <@=»8( 15) — Allegations of fraudulent breach of cost-plus army cantonment construction contract held mere conclusions.
Allegations of government’s petition that contractor’s breach of cost-plus contract for construction of army cantonment, causing excessive costs, was in several instances fraudulent, held mere conclusions.
2. United States <@=»73 — Provisions of army cantonment construction contract for supervision by contracting officer held not to prevent contractor doing anything, except as directed.
Provisions of cost-plus contract for construction of army cantonment, subjecting work “in every detail” to “supervision, direction, and instruction” of contracting officer, held- not to mean that contractor was to do nothing, except as in detail directed by government.
3. United States <@=>73 — Contracting officer’s approval and payment of expenditures under cost-plus army cantonment construction contract held binding, absent fraud or gross mistake.
Under cost-plus contract for construction of army cantonment, providing that decision of contracting officer on monthly statements shall govern, and that payments thereon shall be final and binding on both parties, contracting officer’s approval of expenditures and payment thereunder was binding, in absence of fraud or-gross mistake amounting to fraud.
4. Pleading <@=>8(13) — Allegation that constructing quartermaster lacked authority to make binding settlement under cost-plus contract for construction of army cantonment held mere conclusion. -
Allegation of government’s petition for breach of cost-plus contract for construction of army cantonment that constructing quartermaster lacked authority to make settlement with contractor in any way binding or -conclusive on parties held mere legal conclusion.
5. Pleading <@=>34(5) — Allegations of government’s petition that constructing quartermaster was not successor of contracting officer as to work under cost-plus contract held negatives pregnant.
Allegations of government’s petition for breach of cost-plus contract for construction of army cantonment that constructing quartermaster was not successor in office nor appointed general representative of contracting officer, and that contracting officer’s duties were never assigned or delegated to him, held negatives pregnant, in not repelling inferences from averments that he was special representative of contracting officer, and that some of such officer’s duties were assigned to him by Secretary of War.
6. United States <@=>73 — Whether constructing quartermaster was contracting officer’s representative as respects army cantonment construction contract held dependent on his authorized acts, and not on his title.
Whether constructing quartermaster was representative of contracting officer in supervising work and approving expenditures under cost-plus contract for construction of army cantonment held not dependent on allegation that he was not such representative, or on title by which he was designated, but on what he did at instance and by authority of government.
7. Principal and agent <@=>161 (2)— Principal, after approving and accepting agent’s acts, cannot repudiate some of the acts solely because he withheld from agent a nominal title.
Principal cannot confer on agent authority to do certain acts, accept and-approve them as done, and thereafter repudiate such of them as he chooses, solely because he withheld from agent, perhaps without knowledge of other party, official or nominal title of the one or class through whom he contracted to act.
8. United States <§=75 — Allegation that constructing quartermaster had immediate charge of work under army cantonment construction contract held to establish that he was contracting officer’s representative.
Allegations of government’s petition for breach of cost-plus contract for construction of army cantonment, that construction work was immediately in charge of constructing quartermaster, who under authority of government approved and accepted work and made payments under contract, held to show that quartermaster was representative of contracting officer, requiring allegations of positive facts to contrary.
9. United States <§=75 — That government made payments under cost-plus army cantonment construction contract more frequently than required held not to lessen binding effect thereof.
Where cost-plus contract for construction of army cantonment authorized contracting officer to make payments monthly, “or at more frequent intervals,” to enable contractor to take advantage of discounts, or for other lawful purposes, fact that government made payments more frequently than it was obliged to do under contract held not to lessen binding force of its approval and acceptance of work.
In Error to the District Court of the United States for the Eastern Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
Action by the United States against the A. Bentley & Sons Company. Demurrers to portions of the petition were sustained, and the action dismissed, and the United States brings error.
Affirmed.
See, also, 293 F. 229.
Jas. M. Butler, Sp. Asst. Atty. Gen. (Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio, and Roseoe C. McCulloch and Claude J. Bartlett, Sp. Asst. Attys. Gen., on the brief), for the United States.
Harold W. Eraser, of Toledo, Ohio (E. J. Marshall, of Toledo, Ohio, John Wilson, of Columbus, Ohio, and George P. Hahn, of Toledo, Ohio, on the brief), for defendant' in error.
Before DENISON," MOORMAN, and KNAPPEN, Circuit Judges.
MOORMAN, Circuit Judge.
This is a suit by the government against the contractor which constructed the army cantonment at Chillieothe, Ohio. It is based on a “cost-plus contract,” under which the contractor received as compensation for its services a fixed percentage of the cost of the work. The contractor obligated itself to do the work “in accordance with the drawings and specifications to be furnished by the contracting officer, and subject in every detail to his supervision, direction and instruction”; to keep “at the. site of the work a duly appointed representative, who shall receive and execute on the part of the contractor such notices, directions, and instructions as the contracting officer may desire to give”; and to “use its best efforts in all 'its acts hereunder to protect and subserve the interest of the contracting officer and the United States.”
, The government agreed to reimburse the contractor “for such of its actual net expenditures in the performance of said work as may be approved and ratified by the said contracting officer.” To effect payment on the work the contractor and the contracting officer were required to prepare monthly statements showing as completely as possible the cost of the work up to and including the last day of the previous month, and the contractor was required to deliver to the contracting officer the original pay rolls for labor, the original invoices for materials purchased, and all other original papers not theretofore delivered, supporting the expenditures claimed by the contractor to be included in the cost of the work. On or about the 9th day of each month the contracting officer was required to pay to the contractor the cost of the labor and material so furnished, less any previous payments for the same matters. With reference to the acceptance of the work and the payments so directed, it was provided that, “if there be any item or items entering into such statement upon which the contractor and the contracting officer cannot agree, the decision of the contracting officer as to such item or items shall govern; * * * the statement so made and all payments made thereon shall be final and binding upon both parties hereto, except as provided in article 14 hereof;” and further, by article 14, that the contractor should have the right of appeal from any decision of the contracting officer to the officer in charge of cantonment construction, and, if it felt aggrieved by the decision of the latter, the right of further appeal to the Secretary of War, whose decision should be final and binding upon both parties.
The amended petition consisted of 28 paragraphs, to which there was filed an amendment. Defendant filed a general demurrer to the amended petition and separate demurrers to paragraphs 16 to 27 thereof, both inclusive. The court overruled the general demurrer and all separate demurrers, except those directed to paragraphs 17, 19, 20, and 23, which were sustained. Counsel for plaintiff then advised the court that they did not desire further to amend or prosecute the suit, unless and until the rulings sustaining the separate demurrers had been set aside or reversed. Thereupon the court ordered that the prayer of the petition be denied, and that the action be dismissed. It is from that order that error is prosecuted. The question is whether a cause of action is stated in any of the paragraphs to which demurrers were sustained, when considered in connection with the other averments of the amended petition and the amendment thereto.
Paragraph 17 asks for damages in the sum of $1,200,000, resulting from the employment of incompetent workmen, improperly equipping them to perform the work, and the payment of extravagant wages. Paragraph 19 alleges extravagance in conducting the commissary, whereby employees were charged 30 cents for meals which cost approximately 54 cents, and were given meal tickets and permitted to retain them after they were discharged, the claim of loss being $160,987.53. Paragraph 20 deals with the salaries paid to defendant’s general superintendent, office engineer, and other employees who were engaged on the work. It is not claimed that they were unnecessarily employed, or that proper wages paid them were not chargeable to the government, but that the wages paid were excessive. On this account a recovery of $25,-276.68 was sought. Paragraph 23 charges the hiring of unnecessary equipment at excessive prices, for which a recovery of $150,000 was asked.
Considering these paragraphs in connection with the rest of the amended petition and apart from the amendment, we observe that defendant engaged in constructing the camp, made certain expenditures for labor and material in so doing, and was repaid the amounts thus expended by the government’s representative in ehax’ge of the work. It is not ehargr ed that these costs incurred by defendant were not approved by the contracting officer or his representative; indeed, quite the opposite is to be inferred from what is alleged, if it is not specifically stated in the phrase “and from time to time was promptly paid for such expenditures as in said contract provided.” While it is alleged that the expenditures were extravagant, it is nowhere stated — with a single exception regarding which the trial judge retained the case — that defendant made any profit or received any benefit, either directly or indirectly, out of its alleged extravagance. No facts are stated showing fraud, or that the maximum fee under the contract was not earned on admittedly proper expenditures. The claims are founded on a breach of defendant’s contractual duty to “use its best efforts * 9 '* to protect and subserve the interest” of the plaintiff. It is true that the breach is alleged in several instances to have been fraudulent, but these allegations are conclusions of the pleader and cannot give to the action the color of a suit for fraud. Chamberlain v. United States, 270 U. S. 347, 46 S. Ct. 225, 70 L. Ed. 619.
Defendant contends that the clause in the contract subjecting it, in doing the work, “in every detail,” to the “supervision, direction, and instruction” of the contracting officer, must be held to mean that defendant was to do nothing except as in detail directed by the plaintiff. We cannot subscribe to so broad an interpretation of the clause, although it evidently gave to the contracting officer a general supervision over the work as to results with whatever incidental effect that might have upon the maimer of doing it. The petition clearly shows that this supervision was exercised by an officer of the government— presumably one authorized to act as contracting officer, and certainly one whose actions as such the government approved — and that the expenditures of defendant for which it was repaid received his approval. This latter action on his part, in the absence of an allegation of fraud or gross mistake amounting to fraud, was binding on the parties according to article 4 of the contract, which provided that the decision of the contracting officer upon the required monthly statements “shall govern,” and that all payments made “thereon” shall be “final and binding on both parties.” United States v. Mason & Hanger, 260 U. S. 323, 43 S. Ct. 128, 67 L. Ed. 286; United States v. George A. Fuller Co. (C. C. A.) 14 F.(2d) 813.
It is insisted, however, that the amendment shows that the expenditures of defendant did not receive the approval of the contracting officer, and for that reason the Mason & Hanger Case does not apply. With this we cannot agree. The amendment alleges that monthly statements of eosts were not prepared by any one; that no payments were made to the defendant by the contracting officer, either on a basis of such statements or otherwise; that no statements were either prepared or approved by the contracting officer; “that the work of constructing said cantonment was immediately in charge of a constructing quartermaster stationed at Chillieothe, Ohio; that the said constructing quartermaster was an officer in and a member of said cantonment division; that the said constructing quartermaster was subordinate to other officers in said cantonment division, to wit, the chief of said division, the construction officer thereof, and the supervising constructing quartermaster”; that the constructing quartermaster made payments to the defendant on account of labor and material at intervals of a few days and often daily on vouchers approved by himself; “that the constructing quartermaster was without authority, either in his capacity as such constructing quartermaster or in his capacity as disbursing officer, to make any payments or settlements, either intermediate or final, in any way binding or conclusive upon either the plaintiff or the defendant,” and that “at no time was the said constructing quartermaster the successor in office of the contracting officer; that the duties of the contracting officer were never assigned to the said constructing quartermaster by the Secretary of War; that the said constructing quartermaster was never appointed the general representative of the contracting officer; and that the powers, authority, and duties vested in and imposed upon the contracting officer by articles 2 and 4 of the said contract with respect to payments and the preparation of statements of cost and the approval thereof were never delegated or assigned to the said constructing quartermaster.”
It will be observed that the claim that the constructing quartermaster was without authority to make settlement with the contractor is limited by the statement in “any way binding or conclusive upon either the plaintiff or the defendant.” As so qualified the allegation is but a legal conclusion. The averments that the constructing quartermaster was not the successor in office of the contracting officer, that he was never appointed the general representative of the contracting officer, and that the duties of the contracting officer were never assigned to him by the Secretary of War, are negatives pregnant. They do not repel the inference resulting from other averments thát he was a special representative of the contracting officer and that some of the duties of that officer were assigned to him by the Secretary of War. There is a similar defect in the allegation that the “powers, authority, and duties” vested in and imposed upon the contracting officer by articles 2 and 4 of the contract with respect to payments and the preparation of statements of cost and the approval thereof were never delegated or assigned to the constructing quartermaster.
The contract defines the contracting officer as any person to whom the duties of contracting officer may be assigned by the Secretary of War, or any duly appointed representative of that officer. The amendment says that the “work of constructing said cantonment was immediately in charge of a constructing quartermaster stationed at Chillicothe.” It thus appears thht the constructing quartermaster was given charge of the construction of the camp, and further, by other averments, that acting under authority of the government he approved and accepted the work of the contractor and repaid to it the cost thereof “from time to time as in said contract provided.” This the contracting officer or his representative alone had the right to and could do; this the constructing quartermaster did; and this the government approved and accepted as the work of a contracting officer. Whether the constructing quartermaster was a representative of the contracting officer does not depend so much on the allegation that he was not, or on the title by which he was designated, as upon what he did at the instance and by ihe authority of the government. One cannot confer upon his agent the authority to do certain acts, accept and approve them as done, and thereafter repudiate such of them as he chooses solely because he withheld from the agent — perhaps here without the knowledge of the other party — the official or nominal title of the one or the class through whom he contracted to act. A mere name is not so potent. The petition alleges facts showing that the constructing quartermaster, by whatever name called, was a representative of the contracting officer. The legal effect of those facts cannot be destroyed by anything less than a positive and unmistakable showing of other facts to the contrary. This is not to be found in the averments of the amendment.
The claim that the government made payments on the cost of construction more frequently than it waá obliged to do under the contract does not lessen the force of its approval and acceptance of the work. The contracting officer was not restricted to monthly payments, but could make them “at more frequent intervals” to enable the contractor to take advantage of discounts or “for other lawful purposes.” The payments were voluntarily made. It was not alleged that they w'ere made for unlawful purposes or on statements not showing accurately the materials and work theretofore used; and obviously the settlements made “at more frequent intervals” had the approval of the government. The contract was never mod-’ ified, and no payments were made because of any obligation other than those thought to arise under the contract. No facts are stated showing that any payment was brought about by misrepresentation or fraud on the part of defendant. The frequency of payment, the precedent conditions of furnishing statements of costs and material being fulfilled, did not render less binding or final the action of the contracting officer or his representative in approving the expenditures. The petition, as we have said, shows that the constructing quartermaster was a representative of the contracting officer. It is not to be supposed, and ought not to be held, unless imperatively required, that the government intended by the amendment which it filed to disavow this fact. We do not see in the amendment any such requirement.
Judgment affirmed.
The official report of the “Board of Review of Construction” of August 31, 1919, at page 61, supports this view. It shows that emergency construction built by the Cantonment Division was under the supervision of a constructing quartermaster, who was officially designated to represent the contracting officer who, in most eases, was the chief of the Construction Division. Of this the court may take judicial notice. Heath v. Wallace, 138 U. S. 584, 11 S. Ct. 380, 34 L. Ed. 1063; Tempel v. United States, 248 U. S. 121, 39 S. Ct. 56, 63 L. Ed. 162.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
In re 188 RANDOLPH BLDG. CORPORATION.
No. 8921.
Circuit Court of Appeals, Seventh Circuit.
Oct. 1, 1945.
Rehearing Denied Oct. 30, 1945.
Meyer Abrams, of Chicago 111., pro se.
Joseph Z. Willner and Irwin T. Gilruth, both of Chicago, 111., for Ben Gold, Trustee.
Roger S. Foster, of Philadelphia, Pa., and Thomas B. Hart, G. Gale Roberson, and John I. Mayer, all of Chicago, 111., for Securities and Exchange Commission.
Taylor, Miller, Busch & Boyden, of Chicago, 111., for Bondholders Protective Committee.
Before SPARKS, MAJOR, and KERN-ER, Circuit Judges.
SPARKS, Circuit Judge.
The petitioner asks leave of this court to appeal from an order of the District Court, pursuant to section 250 of chapter X of the Bankruptcy Act, 11 U.S.C.A. § 650. The order was entered August 22, 1945, and denied petitioner’s claim for services alleged to have been performed by him in this proceeding and which he alleges were valuable and beneficial to the estate. In passing upon this claim the District Court said: “Meyer Abrams has asked for an allowance as representing certain creditors. Unfortunately Mr. Abrams owned certain bonds of the debtor and sold them while the reorganization was pending in this court. Under the authority of Otis & Co. v. Insurance Building Corporation [1 Cir.], 110 F.2d 333, I do not think I can allow him any fee.”
It is clear that the District Court did not pass upon the merits of this claim. The court’s rulings were based on its interpretation of section 249 of chapter X of the Bankruptcy Act, 11 U.S.C.A. § 649.
This proceeding for reorganization was instituted on August 5, 1933, and petitioner intervened as counsel for other bondholders on July 29, 1937. On November 25, 1938, section 167 of chapter X of the Act, 11 U.S.C.A. § 567, was made applicable to this proceeding, and on March 22, 1943 most of the remaining sections of the Act, including section 249, were likewise made applicable. All creditors were so notified and petitioner was present in court when the court considered the question of making section 249 thus applicable to this proceeding.
On April 1, 1944, during the pendency of the proceeding, petitioner sold for his own account $11,700 principal amount of first mortgage bonds of the debtor to Union Security Company, and received therefor from the purchaser $1,573.65. Petitioner’s verified petition for appeal alleges that he had acquired these bonds prior to the commencement of these proceedings. On June 8, 1945, petitioner filed his claim for an allowance of $12,500 for services rendered during the proceedings, and $59 for expenses. This claim was not accompanied by a statement under oath as required by section 249 of Chapter X. However, after evidence of such sale was adduced, petitioner filed his unverified statement with the District Court, that he had sold the bonds referred to and received payment therefor, prior to filing his claim, and after the application to this proceeding of Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq.; and that no claim against the debtor was acquired by petitioner or any member of his law firm after the commencement of this proceeding.
Subsequently, on June 14, 1945, petitioner filed in the District Court his written request that that court approve the sale of the bonds above referred to. The court denied this request.
Under these facts, which we assume to be true only for the purposes of this petition, the petitioner contends that an attorney representing individual claimants in a reorganization proceeding under Chapter X of the Bankruptcy Act is not prohibited by section 249 of the Act, from obtaining compensation for services rendered to the estate because he sold securities of the debtor, after the commencement of the proceeding, which securities he had acquired prior to such commencement.
We think there is no reasonable basis for ambiguity in the interpretation of the language of section 249, and that this contention is without merit. See Otis & Co. v. Insurance Building Corporation, 1 Cir., 110 F.2d 333; In re Mountain States Power Company, 3 Cir., 118 F.2d 405; In re Reynolds Investing Company, 3 Cir., 130 F.2d 60; In re Arcade Malleable Iron Company, D.C., 35 F.Supp. 461; In re Los Angeles Lumber Products Company, D.C., 37 F. Supp. 708.
Petitioner further contends that Section 249 of Chapter X may not be applied to prohibit allowance of compensation for services performed prior to the application of this section to the § 77B, 11 U.S.C.A. § 207, proceedings. We are convinced there is no merit in petitioner’s contention that such ruling constitutes a retroactive application of Section 249. It is also worthy of note that this petition recites that it was through petitioner’s insistence that the court made Section 249 applicable to this proceeding.
(3) Petitioner further contends that the word “or” in the phrase “purchase or sale” in Section 249 should be construed “and.” Such construction would clearly establish error on the part of the District Court, for it ruled otherwise. We think the ruling was correct, and we find nothing in the Act to indicate that Congress intended it otherwise.
It is also urged by petitioner that section 249 authorized the District Court to subsequently approve petitioner’s sale of the bonds. That question does not seem to be before us, for the court refused to approve the sale. Certainly the statute did not require that court to approve.the sale, and there is nothing before us to indicate that the court abused its discretion in that respect, if it had such discretion.
Under these circumstances we think the appeal should not be allowed. See In re Seville Court Apartments Building Corporation, 7 Cir., 134 F.2d 232; Davis Transformer Co. v. Mansfield, 1 Cir., 141 F.2d 681.
Petition denied.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_casetyp1_2-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Calvin Roderick CARMICHAEL, Plaintiff-Appellant, v. BIRMINGHAM SAW WORKS, Defendant-Appellee.
No. 85-7665.
United States Court of Appeals, Eleventh Circuit.
April 13, 1987.
Robert L. Wiggins, Gordon, Silberman, Wiggins & Childs, Birmingham, Ala., for plaintiff-appellant.
James W. May, Gulf Shores, Ala., for defendant-appellee.
Before HILL and HATCHETT, Circuit Judges, and THOMAS , Senior District Judge.
Honorable Daniel H. Thomas, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation.
PER CURIAM:
In this Title VII employment discrimination case, we review the district court’s ruling on attorney’s fees. Finding that the district court failed to follow the mandate of this court in a prior appeal, we vacate the judgment and remand the case.
Procedural History
This is the second appeal arising out of a claim of racial discrimination filed by Calvin Roderick Carmichael against Birmingham Saw Works (Birmingham Saw). Carmichael, a black man, filed this action on February 14, 1979, alleging disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1976 and Supp. V. 1981). The district court rejected Carmichael’s claim of discrimination in hiring and promotions, but found that Birmingham Saw violated Title VII by starting him at a lower wage than that paid to white beginning employees. After a hearing, the district court awarded Carmichael $1,211.50, plus interest, in damages, and $5,400 in attorney’s fees. On appeal, we remanded for further proceedings on the hiring and promotion claims. Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984) (Carmichael I). We also concluded that remand was appropriate on the attorney’s fee issue because the district court failed to identify the hours it disallowed and failed to explain why it disallowed them. Carmichael I at 1139.
After retrial, the district court ruled for Carmichael on the remanded claims and entered a judgment awarding him $20,-513.69 in backpay. Carmichael filed a motion for attorney’s fees and expenses, and the district court set the matter for hearing before a United States Magistrate. The court also entered an order requiring that Carmichael set forth an itemized statement of fees and expenses within thirty days, and requiring that Birmingham Saw raise any objections to Carmichael’s statement within twenty days. Pursuant to the order, Carmichael timely filed an itemized statement of fees and expenses, but Birmingham Saw did not file an objection. At the hearing, three lawyers testified that they had examined the hours Carmichael’s attorneys expended in the case and found them to be reasonable. Birmingham Saw did not dispute their testimony. On the basis of this evidence, the magistrate found: (1) that the time and labor required to handle the case was not an issue because Carmichael presented a detailed affidavit and Birmingham Saw did not respond; (2) that Carmichael’s attorneys were exceptionally skilled in Title VII practice, and this skill should be a factor in determining the hourly rate; (3) that the hourly rate from 1979 through 1981 was $75 per hour, from 1982 through July, 1984, $90 per hour, from July, 1984, through March 30, 1985, $100 per hour, and from March 30, 1985, to the present, $110 per hour; (4) that the fee was contingent; (5) that the base noncontingent fee should be enhanced due to delay; and (6) that excellent results were obtained. Based on these findings, the magistrate recommended an unenhanced lodestar amount of $25,834. The magistrate recommended that the lodestar amount be enhanced to $31,042.40 due to the contingency arrangement and delay. The magistrate filed his Report and Recommendation on August 20, 1985; it provided that objections had to be filed within ten days. No objection was filed. Notwithstanding Birmingham Saw’s failure to object to the magistrate’s report and recommendation, the district court reduced the recommended fee by 25-percent to $23,-282.25, and held that it found no basis for enhancing the award.
Discussion
On this appeal, Carmichael contends that the 25-percent reduction in compensable hours expended was improper because the district court failed to identify the hours disallowed and failed to explain why it disallowed them as this court mandated on the prior appeal. Carmichael also contends that the district court erred by refusing to enhance the award to account for delay. Birmingham Saw contends that the district court adequately explained its disallowance of hours and articulated legitimate reasons for refusing to enhance the award.
A. Reduction in Compensable Hours Expended
On the first appeal in this case, we vacated and remanded because we found that the district court failed to adequately explain how it evaluated the factors it was required to consider. In remanding the case to the district court for further proceedings, we noted that, without such explanations, the district court’s findings were impossible to review:
The district court is of course empowered to disallow hours it finds excessive or unnecessary. But ‘[i]f the court finds the number of hours excessive, it should identify the hours disallowed and explain why it is disallowing them.’ Fitzpatrick v. Internal Revenue Service, 11 Cir. 1982, 665 F.2d 327, 332. Otherwise, we have no way of reviewing the decision. Johnson v. University College, 11 Cir. 1983, 706 F.2d 1205, 1207-08, cert. denied, 1983, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684.
Carmichael at 1137.
The district court acknowledged its understanding of our directions to identify the hours disallowed; it refused to do so because, in its view, such a “burden” was “impracticable.” After specifically identifying some “questionable” hours, the district court concluded that “a degree of ex-cessiveness permeates all the claimed hours.” Accordingly, the district court reduced the magistrate’s recommended fee award by 25-percent, stating that its action was based on “common sense and twenty-three years as a lawyer and five and a half years as a judge.”
We find the district court’s “explanation” inadequate and its order insufficient; we are no more able to review the disallowance of attorney’s fees based on judicial intuition, than we are able to review an award based on nothing at all. Given the Fitzpatrick v. Internal Revenue Service, standard, we can seldom, if ever, countenance an across-the-board reduction as ordered by the district court in this case.
It is difficult to understand why the district court insisted on reducing the award in this case without adequate explanation when Birmingham Saw never contested the award — even when explicitly offered the opportunity to do so. As we stated in King v. McCord, 707 F.2d 466, 468 (11th Cir.1983), “A trial judge cannot substitute his own judgment for uncontradicted evidence, without explanation and record support.” (Citing Marable v. Walker, 704 F.2d 1219 (11th Cir.1983) (“this court has consistently required district courts to conduct evidentiary hearings [citation omitted] and to enter specific findings of fact and conclusions of law in rendering fee awards where disputes cannot be otherwise resolved.”))
Thus, we are compelled to vacate and remand once again. On remand, the district court shall enter an order adopting the magistrate’s fee award recommendation.
The appellant urges that we adjust the lodestar amount upward due to the delay in its payment. We decline to do so.
REVERSED and REMANDED
. The magistrate used the following matrix to arrive at the lodestar:
. On the first appeal we remanded "reluctantly” because we felt Carmichael’s attorneys contributed to the district court’s deficiencies by failing to set forth a precise and explicit fee request. On remand, however, Carmichael's attorneys entered a detailed affidavit in support of attorney’s fees and meticulously itemized the hours expended. Thus, Carmichael, at least, has heeded our admonition to "produce a record of adequate detail to permit meaningful and efficient review.” Carmichael I at 1139.
. The district court disagreed with the magistrate’s conclusion that Birmingham Saw did not contest the award. At the conclusion of the hearing, Birmingham Saw’s attorney stated:
I would ask the court to temper your decision with reasonableness ... I have no idea that the court would award the total amount that Mr. Wiggins asks for because, as I say, I believe it’s outrageous____ I am sure the court understands the position of unsuccessful defendants in such cases as this where it is difficult and it is distasteful to contest an attorney’s fee application.
In our view, however, Birmingham Saw cannot be said to have "contested" the award based on this general statement. Contesting in this context entails putting on evidence to rebut the claimed entitlement to compensation.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
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.
PUERTO RICO TOBACCO MARKETING COOPERATIVE ASS’N v. McCOMB.
No. 4417.
United States Court of Appeals First Circuit.
April 28, 1950.
E. Martinez Rivera, San Juan, Puerto Rico (Luis Blanco Lugo, San Juan, Puerto Rico, on brief), for appellant.
Bessie Margolin, Assistant Solicitor, Washington, D. C. (William S. Tyson, Solicitor, and William A. Lowe and Harry A. Tuell, all of Washington, D. C. and Kenneth P. Montgomery, Regional Attorney, Santurce, Puerto Rico, bn brief), for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
The Administrator of the Wage and Hour Division, United States Department of Labor, brought the instant action against the Puerto Rico Tobacco Marketing Cooperative Association to restrain it from violating § 15(a) (1), (2), and (5) of the. Fair Labor Standards Act of 1938, 52 Stat. 1068, 29 U.S.C.A. § 215(a) (1), (2)-,' (.5) with respect to certain of its warehouse and stemmery employees. The court below on stipulated facts and the testimony of one expert witness called by the Administrator, entered judgment for the plaintiff according to the complaint and .the defendant thereupon took this appeal. ■
The defendant is a ’ cooperative associa-' tion incorporated not for pecuniary ‘profit under Insular Act No. 70 of 1925. Laws of' Puerto Rico 1925, p. 368 et seq. It has a principal office in San Juan, and tobacco warehouses and stemmeries in eight other municipalities in the Island. Its warehouse and stemmery operations at Comerio have been stipulated, we take -it because they typify its operations of that kind elsewhere, and it is stipulated that all of its employees there “are engaged in processes or occupations necessary to the production of goods for interstate commerce and, therer' fore, are within the general coverage of' the Fair Labor Standards Act and are entitled to its benefits unless they are exempted by specific provisions of the Act.”' .The; specific exemption provisions involved are those having to do with agricultural employments embodied in §§ '13(a) "(6) and 13 (a) (10) of the Act.
The Association handles only tobacco grown by its members, of whom there are about 7,000, and 'each member is under coni tract to market all his tobacco through the Association. The latter by the terms of its contracts with its members takes title to‘ the tobacco as soon as it has “potential existence”,’but the member is responsible for his crop until he delivers it to the Association. Upon delivery the Association grades and weighs the tobacco, and then processes it for marketing exclusively in continental United States. It is stipulated that the Comerio warehouse and stemmery, and on our assumption its other warehouses and stem-meries also, is a “first concentration point” for all tobacco received and worked upon there within the meaning of that term as used by the Administrator in his definition of “area of production” with respect to Puerto Rico leaf tobacco. Regulations Defining Area of Production, as amended December 1946, § 536.2(a) (2) and (c).
. The members first dry their tobacco in barns or sheds on their, premises and then deliver it at the Association’s warehouses in loose bales or bundles weighing about one quintal, or one hundred pounds.. There it is first weighed and receipted for and then graded according to type and quality. Following this the tobacco is put into piles known locally as “estibas” of about 150 quintales and allowed to ferment under controlled conditions of temperature for about two months, during which time the piles are torn down and rebuilt by moving the inside leaves to the outside of the pile, and vice versa, some six or eight times as the fermentation process requires. When this fermentation process, known as bulking, is completed the tobacco is stacked for 'later stemming.
When the stemming season starts the fermented tobacco is reclassified into tobacco of inferior quality, known as “boliche”, and tobacco of superior quality. The “boliche” is not stemmed, but merely fumigated and packed for shipment. The tobacco of superior quality which is to be stemmed is first dipped in water to soften it for the purpose, and then the moistened leaves are left in piles for several days. After this the piles are separated into packages called “pesadas” weighing 5 or6 pounds and these “pesadas” are wrapped in cloth and taken to a steaming room from which they are later removed for delivery to the stem-mers.
Stemming consists in removing the central vein or rib from the tobacco leaf. It is performed manually, usually by women, who hold the point of the vein or rib in their teeth and pull away the sides of the leaf with their hands. The separated leaves of tobacco after stemming are roughly classified by the stemmer and stacked by her on the bench at which she works. Employees known as reviewers check her work, and then carry the stemmed leaves to a place in the warehouse where they are collected for baling into bulks or “’tongas” for a second fermentation process similar to the one already described, but lasting only about a month. When the second fermentation process is complete, the tobacco is dried, sorted, classified according to quality, and packed for shipment to the United States.
In addition to the employees engaged in the processes described, the Association also has two or three employees in each warehouse who work during the harvesting season in dispatching material such as fertilizer, cord, Paris green, etc., to the members, and one or more others who deliver this material to the members by truck. It also employs laborers who move tobacco from place to place in the warehouses to prevent spoilage by heat, other laborers who collect,' clean and fumigate the scrap tobacco resulting from the stemming process, repair and maintenance men, men who move bales of tobacco ready for shipment, and persons who perform the necessary supervision, clerical and office work.
The Administrator concedes, but only for the purpose of this case, “that within the meaning of the applicable regulations and terms of the law, employees engaged in the receipt of stalk-out-tobacco, in the classification and bulking of such tobacco and in the reclassification, packing, moving and fumigating of such tobacco prior to stemming are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act, by virtue of Section 13(a) (10) when they are engaged in the listed occupations in an establishment which is a first concentration point for such tobacco.” And, as already pointed out, the Administrator also concedes that the defendant’s warehouses and stemmeries are in fact first concentration points for tobacco within his own definition. Furthermore the Administrator concedes that the defendant has paid at least the legal mipimum wage of 27 cents per hour to all of its employees engaged in processing operations from wetting in preparation for stemming on to final shipment. Nor does he allege that the defendant has violated any of the provisions with respect to maximum hours of employment contained in § 7 of the Act.
The conduct of the defendant, which it admits, of which the Administrator complains is the employment of certain of its employees during the same workweek both on work which he concedes is exempt from the minimum wage provisions of the Act and on work which he contends is not exempt, and the payment of those employees at the rate of 27 cents per hour for their time on allegedly non-exempt work but only 25 cents per hour for their time on conced-edly exempt work. He contends that this split workweek basis for paying these employees is in violation of the Act; they being entitled to the 27 cents per hour minimum wage for every hour worked in every week in which any part of their work is non-exempt. And the Administrator also contends that the defendant has failed to keep the records required by § 11(c) of the Act with respect to its stemmers, who are paid piece rates, although he concedes that these employees are not employed more than 40 hours in any workweek and are paid substantially more than the legal minimum wage.
The defendant on this appeal rests its defense solely upon the broad dual proposition, first, that all of its employees are exempt from the provisions of the Act for the reason that they are employed in agriculture, within the meaning of § 13(a) (6), and second, that they are also exempt from the provisions of the Act for the reason that they are employed within the area of production in handling and preparing agricultural commodities in their raw or natural state for market, within the meaning of § 13(a) (10).
The defendant’s contention that its employees fall within the exemption of § 13(a) (6) because they are “employed in agriculture” as' that term is defined in § 3(f) must be categorically rejected on the authority of Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, in which the Supreme Court rejected the same contention with respect to the employees of an incorporated mutual ditch company organized on a non-profit basis by a group of farmers in Colorado for the purpose of collecting, storing, and proportionately distributing water to its farmer-members for irrigation purposes. In- its opinion in the above cited case the court pointed out, 337 U.S. at page 762 et seq., 69 SJCt. at page 1278, that the definition of agriculture in § 3(f) had two branches — first a-“primary meaning” which includes “farming in all its branches”; specific farming practices, such as cultivation and tillage of the soil, dairying, etc. being listed as illustrative, and a secondary broader meaning which includes “any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with” farming operations within the primary definition. Then the court said that -clearly the operations of the irrigation company, and we must say the same with respect to the operations of' the defendant marketing company, did not fall within the primary meaning of agriculture as defined in the above section of the Act for the reason that it owned no farms and raised no crops, and hence could not be said, 337 U.S. at page 764, 69 S.Ct. at page 1279, to be “engaged in cultivating or tilling the soil or in growing any agricultural commodity.” Following this the Supreme Court rejected the contention, not advanced in the case at bar, that the employees of the irrigation company come within the exemption because its activities were necessary to the production of agricultural commodities, and then, coming to the secondary branch of the definition, the court pointed out that to qualify for exemption the work must be done “by a farmer or on a farm.” It then said, and we must say also: “In the present case it is clear that the work of the company’s employees is done neither on a farm or by farmers.”
The Supreme Court next went on to state and reject a further argument advanced by the irrigation company, and one also advanced by the marketing company in the case at bar. The -court said, referring to the work of the employees of the irrigation company, “Clearly, it is not done on a farm. Nor, we think, is it done ‘by a farmer.’ Since we have already said that the company’s employees are not engaged in farming, it is perhaps too obvious that the work that they do is n-ot done by farmers. But an argument to the contrary is made. It is based on the fact that the company is a'mutual one, owned by the farmers whom it serves. It is argued that the company is therefore merely a formal' conduit or agent, by which the farmers cooperatively operate their common water supply system and cooperatively employ the men'. The men are, therefore, said to be farmers because they are said to be employed by farmers.”
The Supreme Court answered the above argument by first pointing out that “There is a difference between the hiring of mutual servants by a group of employers and the creation by them of a separate business organization, with its own officers, property, and bonded indebtedness, which in turn hires working men”, and then pointing out that “Those working men are in no real sense employees of the shareholders of the organization. They are hired by the organization, fired by the organization, -controlled and directed by the organization, and paid by it.” And following this the court continued: “The fact -that the organization is a corporate one adds to the picture but is not controlling. The controlling fact is that the company has been set up by the farmers as an independent entity to operate an integrated, unitary water supply system. The function of supplying water has thus been divorced by the farmers from the farming operation and set up as a separate and self-contained activity in which the farmers are forbidden, by the company's by-laws, to interfere. Those employed in that activity are employed by the -company, not by the farmers who own the company. The fact that the company is not operated for profit is immaterial. • It is nonetheless the employer.” On the basis of the foregoing the court concluded that the irrigation company employees were not exempt under § 13(a) (6) from the coverage of the Act.
The Farmers Reservoir & Irrigation Co. case is squarely in point in all material respects and rules the case at bar so far as § 13(a) (6) is concerned. Indeed the language of the Supreme Court in that case is directly applicable, nmtatis nmtandis, to the case at bar. See also to the same effect the decisions of this court in Bowie v. Gonzalez, 117 F.2d 11; Calaf v. Gonzalez, 127 F.2d 934; Vives v. Serralles, 145 F.2d 552, and McComb v. Super-A Fertilizer Works, 165 F.2d 824.
We turn, therefore, to the defendant’s further contention that its employees are nevertheless exempt under § 13(a) (10) of the Act which in so far as material provides that the minimum wages and maximum hours sections of the Act, §§ 6 and 7, shall not apply with respect to “any individual employed within the area of production (as defined by the Administrator), engaged in handling, packing, storing, * * * drying, preparing in their raw or natural state * * * agricultural or horticultural commodities for market * * The argument of the defendant is that its employees are working in an area of production as defined by the Administrator, which he admits, and that they are engaged in handling and preparing for market an agricultural or horticultural commodity, which the Administrator concedes, in its raw or natwral state, which the Administrator denies.
The crucial words are those in italics; the specific question being whether tobacco continues to be in its “raw or natural state” after stemming or whether it does not.
The court below found as a fact on the testimony of the Administrator’s expert witness that the process of fermenting leaf tobacco as described in the stipulation “produces a chemical change in the tobacco by making it milder and sweeter”, [80 F.Supp. 953, 954] and in the course of its memorandum opinion that court held “that the stemming and fermenting of leaf tobacco are operations which change the form and nature of the tobacco and is a processing operation rather than ‘handling, packing, storing’”, etc. of agricultural or horticultural commodities “in their raw or natural state”. Wherefore that court concluded as matter of law that: “Defendant’s employees engaged in fermenting leaf tobacco and in stemming leaf tobacco and in any handling of tobacco subsequent to those operations are not engaged in handling, packing, storing, drying or preparing tobacco in its raw or natural state within the meaning of Section 13(a) (10) of the Fail-Labor Standards Act of 1938.” Consequently, in view of its holding that the defendant’s employees were not engaged in agriculture within the meaning of § 13(a) (6), with which we agree, and its conclusion that the split workweek basis for paying some of its employees violates the Act and that the stemmers’ records were not kept as the Act requires, with which we are not concerned, it entered the judgment for the Administrator from which this appeal was taken.
As the economy of this country is now organized almost all agricultural commodities pass through a series of handling, packing, storing, ginning, compressing, pasteurizing, drying or preparing processes on their way from the farm to the ultimate consumer. And, for reasons not far to seek, see Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 18, it was obviously the purpose of the framers of the Fair Labor Standards Act of 1938 by it § 13(a) (10) to exclude from the benefits of the Act “any individual employed” in any of the above processes with respect to agricultural or horticultural commodities, provided, first, that the employment was within the area of production as administratively defined, and second, that the employee, except for cannery and creamery employees, who are specifically mentioned, was engaged in working on commodities of the kinds described “in their raw or natural state.” The problem here is to determine at what point in the course of preparation for market leaf tobacco passes from its “raw or natural” state.
The words “raw” and “natural” in their statutory setting defy definition in broad terms generally applicable to all agricultural or horticultural commodities. “Raw” is the antithesis of “cooked”, and cooking connotes a chemical change wrought by heat. Thus, since fermenting also produces a chemical change- and usually implies heat, or at least warmth, it may perhaps be likened to slow cooking. But cooking ordinarily implies the application of heat by human means from some source outside the thing cooked, whereas, when conditions are right, ferménting occurs spontaneously and naturally within the thing fermented. And furthermore, the latter process may involve so little heat as to make application to it of the term “cooking” wholly inappropriate. • Moreover, while Cooking and fermenting both produce chemical changes, so also, no doubt, does ripening, and in the case of fruits, the chemical change incident to ripening makes the fruit sweeter and milder. But -certainly ripening cannot appropriately be likened to cooking, or, in all probability, to fermenting.
Similar problems arise with respect to the word “natural”. There can be no doubt that Indian corn ceases to be in its natural state as soon as it is ground. But does it remain in its natural state throughout the entire course of its processing previous to grinding, which involves breaking from the stalk, husking, drying and shelling from the cob? A host of other illustrative problems come to mind, but enough has been said to indicate the inherent difficulty, if not the impossibility, of formulating any workable definition of the statutory words applicable generally to all agricultural or horticultural commodities.
Specific situations will have to be considered as they arise, and in keeping with the spirit and purpose of the Act a line drawn between exempt and non-exempt employment in accordance with the statutory wording. And, this line must be drawn by the courts, Addison v. Holly Hill Fruit Products, 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488, 153 A.L.R. 1007, so that of necessity it must be pricked out by the slow process of deciding concrete cases as they arise.
In this case we agree with the line of distinction with respect to leaf tobacco drawn by the court below. Perhaps within the statutory wording it might possibly be drawn a step earlier in the processing, i. e., at the first fermenting, rather than at stemming, but the Administrator’s concession that workers engaged in processing prior to stemming are exempt makes it unnecessary for us to -consider the point. Whether leaf tobacco conies fr-om the first fermentation process “raw” or-not, a very close question perhaps, the leaf certainly was not in its natural state after its central vein or rib was removed. This changed its form. The process is comparable to grinding a cereal grain, for instance, and we think clearly marked the line between exempt and nonexempt work. Our judgment is perhaps arbitrary in the sense that the line could conceivably be drawn somewhere else without doing violence to the statutory language, but in cases of this sort arbitrary judgments in this limited sense cannot wholly be avoided. The best that can be done is to draw a line of distinction with respect to each commodity at some practical point within the statutory language, and this in our opinion is exactly what was done by the court below. We, therefore, agree with the conclusion it reached.
The judgment of the District Court is affirmed.
Wage Order for the Leaf Tobacco Industry in Puerto Rico promulgated by the Administrator pursuant to §§ 5 and 8 of the Fair Labor Standards Act, which bo-came effective, after publication in the Federal Register, on April 1, 1945. Title 29, Ch. V, Code of Federal Regulations, Part 657.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_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.
LAKE TANKERS CORP. v. HENN, ADMINISTRATRIX.
No. 445.
Argued May 6, 1957.
Decided June 10, 1957.
Eugene Underwood argued the cause for petitioner. With him on the brief was H. Barton Williams.
Frank C. Mason argued the cause and filed a brief for respondent.
Mb. Justice Clark
delivered the opinion of the Court.
This admiralty limitation proceeding resulted from a maritime disaster in 1954. The aggregate amount of all of the claims filed in the proceeding and for which the petitioner could be held liable if found at fault is less than the value of petitioner’s vessels and their pending freight. The question presented is whether the respondent, the principal claimant, may, under these circumstances, proceed with her action in a state court, subject to the continuing jurisdiction of the federal court to protect petitioner’s right to limited liability, to determine the obligation of the petitioner to respond in damages for the loss of the life of her husband. We agree with the disposition of the District Court as modified by the Court of Appeals.
Respondent’s husband was a passenger on the pleasure yacht, Blackstone, which was involved in a collision on the Hudson River on July 10, 1954, with petitioner’s tug, Eastern Cities, push-towing petitioner’s barge, L. T. C. No. 88. The Blackstone capsized and respondent’s husband was drowned. The other 10 persons on board the yacht were rescued. Respondent, as her husband’s administratrix, brought suit against the petitioner in a New York state court claiming $500,000 damages for the loss of her husband’s life. She alleged that the loss was caused by Lake Tankers’ negligent operation of both its tug and its barge. Actions by four other claimants were also commenced in the New York state courts against the petitioner for damages for personal injuries and for loss of the Blackstone.
Thereafter, Lake Tankers Corporation filed this proceeding in admiralty in the United States District Court for the Southern District of New York for exoneration from or limitation of liability. As required by the statute authorizing limitation proceedings the petitioner filed approved security. While the first bond was only in the amount of $118,542.21, representing the petitioner’s interest in its tug alone, thereafter a bond covering the barge in the amount of $165,000 was filed. Appropriate restraining orders were issued enjoining the prosecution or filing of any claims against Lake Tankers except in the limitation proceeding. There is no dispute in regard to the adequacy or correctness of the amount of the two bonds.
After petitioner instituted the limitation proceeding the respondent filed a claim for $250,000 in it covering the same loss asserted in her state court case. The 10 survivors, including those who had filed suits in the state court, also filed their claims in the limitation proceeding. These totaled only $9,525. All of the claimants, including respondent, have relinquished all right to any damage in excess of the amounts set forth in their respective claims in the limitation proceeding and expressly limited their recovery to those amounts. The respondent has amended her claim further by allocating $100,000 of her alleged damage to the tug and the remaining $150,000 to the barge. She has also filed stipulations agreeing neither to increase these claims, nor to enter into a judgment in excess of these amounts, and she has waived any claim of res judicata relative to the issue of the petitioner’s right to limit liability if that issue should be passed on in the state court proceeding. The District Court on application then vacated the restraining order since the total fund exceeded the amount of the claims. 137 F. Supp. 311. The Court of Appeals for the Second Circuit affirmed, entering an order, to which respondent has also agreed, with respect to the state court suit, as follows:
“ Tf claimant obtains a judgment in her state court suit for an amount in excess of $100,000, an injunction will issue permanently enjoining her from collecting such excess unless the judgment rests on a special verdict allocating the amount as between the libelant as owner of the tug and as owner of the barge respectively. Thus if the judgment exceeds $100,000 and the jury finds libelant liable solely as owner of the tug, she will be enjoined from collecting any excess. If the jury finds that the libelant is liable solely as owner of the barge, she will be enjoined from collecting any amount in excess of $150,000.’ ” 232 F. 2d 573, 577.
On rehearing the Second Circuit, sitting en banc, reaffirmed its decision. 235 F. 2d 783. Wé granted certiorari to pass upon the important jurisdictional question presented. 352 U. S. 914.
This Court has recently considered the cases which discuss the historical background of the Limited Liability Act, R. S. §§ 4281-4289, as amended, 46 U. S. C. §§ 181-196, in British Transport Commission v. United States, ante, p. 129. It was there pointed out that the Act was adopted primarily to encourage the development of American merchant shipping. The first section of the Act here involved contains its fundamental provision which declares that the liability for any damage arising from a disaster at sea which is occasioned without the privity or knowledge of the shipowner shall in no case exceed the value of the vessel at fault together with her pending freight, 46 U. S. C. § 183. As Mr. Justice Van Devanter stated for a unanimous Court in White v. Island Transportation Co., 233 U. S. 346, 351 (1914), “The succeeding sections are in the nature of an appendix and relate to-the proceedings by which the first is to be made effective. Therefore, they should be so construed as to bring them into correspondence with it.” Among these sections dealing with the mechanics of effecting such limitation of liability is § 184 covering those incidents where “the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of [the claimants].” In that event, the section continues, “they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose” the owners “may take the appropriate proceedings in any court . . . .” (Emphasis added.) The succeeding section provides that in such an event the owner “may petition a district court of the United States ... for limitation of liability within the provisions of this chapter . . . .” It further declares that upon compliance with its requirements “all claims and proceedings against the owner with respect to the matter in question shall cease.” This provision is implemented by Rule 51 of our Admiralty Rules which spells out in more detail the manner in which the owner of any vessel who “shall desire to claim the benefit of limitation of liability . . .” shall proceed. It is, therefore, crystal clear that the operation of the Act is directed at misfortunes at sea where the losses incurred exceed the value of the vessel and the pending freight. And, as is pointed out in British Transport Commission, supra, where the fund created pursuant to the Act is inadequate to cover all damages and the owner has sought the protection of the Act the issues arising from the disaster could be litigated within the limitation proceeding. Otherwise the purpose of the Act, i. e., limitation of the owner’s liability, might be frustrated. Only in this manner may there be a mar-shalling of all of the statutory assets remaining after the disaster and a concourse of claimants. In such a situation it matters not to the owner what the “take” of the individual claimant may be from the proceedingjor under the Act his payment is limited to the value of the vessel and the pending freight. He can suffer no more in any event.
On the other hand, where the value of the vessel and the pending freight, the fund paid into the proceeding by the offending owner, exceeds the claims made against it, there is no necessity for the maintenance of the concourse. This is not to say that concursus is not available where a vessel owner in good faith believes the fund inadequate, but here there is no contention that there might be further claims; the value of the vessels is undisputed and the claims are fixed; it follows indubitably that the fund is sufficient to pay all claims in full. While it is true that the claims as initially filed in the state court exceeded the fund created in the limitation proceeding, still when the admiralty court dissolved the injunction against the state suit these claims, as filed in and limited by stipulation and order of the admiralty court in the limitation proceeding, aggregated less than the fund. On appeal the Court of Appeals placed even more severe restrictions on the state court prosecution, thus insuring beyond doubt that petitioner’s right of limitation under the Act was fully protected.
For us to expand the jurisdictional .provisions of the Act to prevent respondent from now proceeding in her state case would transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights, even where the limitation fund is known to be more than adequate to satisfy all demands upon it. The shipowner’s right to limit liability is not so boundless. The Act is not one of immunity from liability but of limitation of it and we read no other privilege for the shipowner into its language over and above that granting him limited liability. In fact, the Congress not only created the limitation procedure for the primary purpose of apportioning the limitation fund among the claimants where that fund was inadequate to pay the claims in full, but it reserved to such suitors their common-law remedies. 63 Stat. 101, 28 U. S. C. § 1333. In view of this explicit mandate from the Congress the respondent must not be thwarted in her attempt to employ her common-law remedy in the state court where she may obtain trial by jury.
The state proceeding could have no possible effect on the petitioner’s claim for limited liability in the admiralty court and the provisions of the Act, therefore, do not control. Langnes v. Green, 282 U. S. 531, 539-540 (1931). It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other parties in damage actions. The Act, as we have said, was not adopted to insulate shipowners from liability but merely to limit it to the value of the vessel and the pending freight. It is contended that Maryland Casualty Co. v. Cushing, 347 U. S. 409 (1954), is to the contrary. While there was no opinion of the Court in that case, it involved an alleged clash between Louisiana’s direct action statute and the Act. The majority concluded there was no clash. The amount of the claims there far exceeded the value, if any, of the vessel and the pending freight. The language in one opinion to the effect that concursus is “the heart” of the limitation system therefore refers to those cases where the claims exceed the value of the vessel and the pending freight. In that event, as we have pointed out, the concursus is vital to the protection of the offending owner’s statutory right of limitation. But this is not to say that where concursus is not necessary to the protection of this statutory right it is nonetheless required.
We conclude that in the situation here a concursus beyond that required by the orders heretofore entered in this case is not necessary and respondent may therefore proceed with her state court suit.
Affirmed.
Me. Justice Whittaker took no part in the consideration or decision of this case.
R. S. § 4285, as amended, 46 U. S. C. § 185.
The forerunner of the current section gave the District Courts jurisdiction “Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all eases the right of a common-law remedy where the common law is competent to give it . . . .” 42 Stat. 634, 28 U. S. C. (1946 ed.) § 41 (3). As re-enacted it reads, in pertinent part, that the District Courts have original jurisdiction, exclusive of the courts in the States in “Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 63 Stat. 101, 28 U. S. C. § 1333.
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_usc1
|
0
|
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.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, Appellant, v. TENNEFOS CONSTRUCTION CO., Inc., a Corporation, Appellee.
No. 19020.
United States Court of Appeals Eighth Circuit.
June 28, 1968.
Rehearing Denied Aug. 14, 1968.
Ellsworth E. Evans, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellant; Robert C. Heege, of the same firm, Sioux Falls, S. D., and Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., were on the briefs with Ellsworth E. Evans.
Norman G. Tenneson, of Tenneson, Serkland, Lundberg & Erickson, Fargo, N. D., for appellee; Harold A. Dronen, of the same firm, Fargo, N. D., was on the brief with Norman G. Tenneson.
Before MEHAFFY, GIBSON, and HEANEY, Circuit Judges.
GIBSON, Circuit Judge.
The main issue presented in this case and on this appeal concerns the coverage afforded by a contract bond issued to a member of a joint venture indemnifying that member against all loss sustained by reason of the other member’s failure to comply with any of the terms of the joint venture agreement. The District Court for North Dakota held that the bond covered the loss in question and entered judgment for $147,591.22 and costs against the appellant and defendant below, St. Paul Fire & Marine Insurance Company. Diversity jurisdiction was established. A timely appeal was filed. We affirm.
The facts are lengthy but for the most part are stipulated or are not in dispute.
On May 21, 1955 Tennefos Construction Co., Inc. (Tennefos) and Ed Cox & Son, a partnership, (Cox) submitted a joint proposal to the South Dakota Highway Commission for the construction and improvement of United States Highway No. 16, in Lyman County, South Dakota. In' anticipation of formalizing the contract with the State Highway Commission, Tennefos and Cox executed a joint venture agreement on June 4, 1955, which provided for a division of the work between them and the compensation to be paid Cox for its part of the project. Under this agreement Cox was to provide the labor and material necessary to construct the sand and gravel sub-base of the road project and was to “furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” In line with Cox’s bond obligation under the joint venture agreement it, as principal, and the St. Paul Fire & Marine Insurance Company (St. Paul), as surety, executed a contract bond under date of June 14, 1955 agreeing to indemnify the obligee Tennefos for “all loss” that Tennefos might sustain by reason of Cox’s failure to comply with any of the terms of the joint venture agreement. The bond was called a “contract bond” and was on a regular form prepared and supplied by St. Paul.
The formal contract between the State Highway Commission and Tennefos and Cox, as contractors was dated August 25, 1955, and provided that “The said Contractor further agrees to pay all just claims for materials, supplies, food, tools, appliances, and labor, and all other just claims incurred by him * * * and further agrees that the contract bond shall be held to cover all such claims.”
In accordance with the requirements of the highway contract Tennefos and Cox, as principals, and United Pacific Insurance Company (United Pacific), as surety, on August 31, 1955 furnished a performance bond running to the State of South Dakota as obligee in the sum of $408,671.84. As part of the consideration and as an inducement for United Pacific’s execution of the performance bond Tennefos agreed to indemnify United Pacific.
Cox was short of capital and in order to carry out its obligations under the joint venture agreement Cox borrowed money from the Farmers State Bank of Flandreau, South Dakota (Bank). On March 23, 1956 St. Paul notified Tennefos that “* * * there are numerous unpaid bills on the part of Ed Cox and Son for work and materials furnished” and requested that “* * * no further funds on this job be released to Ed Cox and Son, in order that our position under the captioned bond, in which you are obligee, should not be prejudiced in any way.”
St. Paul then under date of April 3, 1956 wrote to the Bank requesting the Bank to exercise certain control over future advances made to Cox on this project. Although the record is not clear, apparently Cox owed the Bank at the time this letter was written a considerable amount for monies advanced on this project. The Bank agreed to these controls and continued to finance Cox. On July 11, 1956 and again on August 23, 1956 St. Paul authorized Tennefos to pay over to the Bank, funds which Tennefos had received from the State for work done by Cox.
St. Paul also made payments in excess of $20,000 for labor, materials and equipment rental so that Cox could comply with the terms and conditions of the joint venture agreement.
After Cox had completed its part of the work under the joint venture agreement there remained unpaid and outstanding $108,492.92 in bank loans that had been obtained and used by Cox in carrying out the project. This amount apparently all had been incurred prior to St. Paul’s letter of April 3, 1956 to the Bank, though there is considerable doubt on this point. The Bank commenced an action in the South Dakota state court against Tennefos and Cox as principals, on the bond furnished to the State, and United Pacific as surety, seeking to recover the amount of the unpaid bank loans. Defense of this action was tendered to St. Paul but it was declined. Tennefos recognized its obligation as an indemnitor of United Pacific and assumed the defense of this state action. Tennefos raised the issue of coverage, much the same as St. Paul, but judgment was entered against Cox and Tennefos and United Pacific for $108,492.42 plus costs. Tennefos then tendered the appeal to St. Paul but this also was declined. The judgment was affirmed by the Supreme Court of South Dakota in State for Use of Farmers State Bank v. Ed Cox and Son, 132 N.W.2d 282 (S.D. 1965). Tennefos paid the judgment and then commenced this action against St. Paul to recover the amount paid, together with costs incurred in defending and appealing the state action.
The District Court heard the case without a jury and granted judgment for Tennefos in the amount of $147,591.-92 based on an estoppel theory. The trial court’s ultimate determination was:
“After having induced the Bank to continue financing Cox and prevailing upon Tennefos to transmit progress payments to the Bank to apply on the loans, in the view of this Court St. Paul Fire is estopped from denying that the loans were outside the coverage afforded under the terms of its indemnity bond.”
We think the trial court reached a correct result but that an estoppel would not apply to the bank funds advanced before St. Paul became involved with the bank advances and in authorizing the Bank’s advances, as indicated by its letter of April 3, 1956. It is impossible for us to tell on the record or by a reading of the state case what funds were advanced before April 3, 1956 and what funds were advanced after that date; or whether the original $108,000 comprising the basis of the Bank’s state court suit represented advanees made by the Bank prior to April 3, 1956, or after April 3, 1956 or both. To the extent that the judgment includes funds advanced by the Bank after St. Paul authorized the bank advancements by its letter of April 3, 1956, we think an estoppel theory would be applicable but that an estoppel could not be applied prior to the time that St. Paul by its acts authorized and induced the Bank to make the advances. The evidence would indicate this approximate date would be April 3, 1956, though there might have been some oral preliminary authorization shortly prior to that date. We, however, feel that this matter is not crucial, as “A successful party in the District Court may sustain its judgment on any ground that finds support in the record.” Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957); Crossett Lumber Co. v. United States, 87 F.2d 930, 109 A.L.R. 1348 (8 Cir. 1937), and we think the contract bond as written-covers Tennefos’s loss.
St. Paul contends that its contract bond only covers Cox’s obligations under the joint venture agreement; that the agreement specifies in detail the obligations which Cox agreed to assume and that these obligations have been fully met; that the payment of money borrowed by its principal Cox is not within the contemplation of the joint venture agreement nor the bond; and further that no estoppel is warranted under the facts of this case. At the outset it should be noted that the case of United States for the Use of First Continental National Bank & Trust Co., Lincoln, Neb. v. Western Contracting Corporation, 341 F.2d 383, 387 (8 Cir. 1965) holding:
“ Tt is the generally accepted view that one who loans or advances money to another for the purpose of meeting a payroll and paying for supplies cannot sue a surety who has guaranteed payment to those furnishing labor and material.’ ”
and other cases similarly holding that loans or advances of money to a contractor to pay for labor or material are not protected by a performance bond are not in point in this case, as the performance bond required by the South Dakota Highway Commission covered, in addition to the usual labor and material claims, all other just claims and was, as properly held by the South Dakota Supreme Court, much broader in coverage than the usual type of performance bond.
Cox and Tennefos began their joint venture by making a successful bid for the road construction project. They proceeded to execute the feasible and necessary documents to carry out the construction project. The instruments which they deemed feasible and necessary to accomplish their purpose were:
1. The joint venture agreement between themselves outlining the sphere of work to be performed by each and defining in detail Cox’s obligation to Tennefos;
2. An indemnity agreement executed by Cox as principal and St. Paul as surety running to Tennefos as obligee;
3. The contract between the State Highway Commission and the joint venturers covering the road construction project;
4. The performance bond required by the State contract and executed by the joint venturers as principals and United Pacific as surety.
These various agreements and the recitals contained in them refer to a single transaction and were necessarily an integral part of the construction project.
The joint venture agreement refers to the bond, which Cox agreed to furnish Tennefos as “similar in form to the contract bond required by the South Dakota Highway Commission” of Tennefos and Cox. The joint venture agreement also outlines the scope of work to be performed by each of the joint venturers and states their individual responsibility for their share of the work, on which they were jointly obligated to perform for the State. The law presumes that a surety knows the contents of its principal’s contracts. Hartford Accident & Indemnity Company v. United States, 127 F.Supp. 565, 567, 130 Ct. Cl. 490 (1955); United States v. Tyler, 220 F.Supp. 386 (Iowa 1963).
A contract of indemnity, which is issued by a compensated surety “* * * is to be regarded as in the nature of an insurance contract governed by the rules applicable to insurance contracts * * Massachusetts Bonding & Insurance Co. v. Feutz, 182 F.2d 752 (8 Cir. 1950). The bond issued by a compensated surety is related to and must be read and interpreted in connection with the other documents which make up the whole transaction:
“* * * where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations or restrictions becomes a part of the bond, and the two should be read together and construed as a whole.” 9 Apple-man, Insurance Law and Practice 70, § 5276.
We recognized and applied this principle in Home Indemnity Company v. F. H. Donovan Painting Co., 325 F.2d 870, 874 (8 Cir. 1963) ;
“It is a fundamental rule of construction that where the contract which is the subject of the performance bond is referred to in the latter, that the contract is to be regarded as a part of the undertaking of the surety under the bond.” (Citations omitted).
The joint venture agreement, which is admittedly covered by St. Paul’s contract bond, specifically refers to and is related to the contract with the State Highway Commission. Absent the contract with the State Highway Commission there would be no need for the joint venture agreement or St. Paul’s bond. These agreements should be read together as they represent successive steps which were taken to accomplish a single purpose. The courts have long recognized that a contract may consist of more than one instrument.
“A contract may be contained in several instruments. These if made at the same time, in relation to the same subject-matter, may be read together as one instrument, and the recitals in one may be explained or limited by reference to the other. This rule obtains even when the parties are not the same, if the several contracts were known to all the parties and were delivered at the same time to accomplish an agreed purpose.” Peterson v. Miller Rubber Co. of New York, 24 F.2d 59, 62 (8 Cir. 1928) — -cited with approval in 182 F.2d 752 (8 Cir. 1950).
And in Kurz v. United States, 156 F. Supp. 99, 104 (N.Y.1957), aff’d 254 F.2d 811 (2 Cir. 1958), the Court recognized the principle: “* * * [W]here several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together, even though they do not expressly refer to each other.” (Citations omitted). Further recognition of this principle is noted and discussed in Doherty Research Co. v. Vickers Petroleum Co., 80 F.2d 809 (10 Cir. 1936); Williston on Contracts, 3d Ed., § 628. 17A C.J.S. Contracts § 298, p. 128, expresses this construction rule, thusly:
“* * * as a general rule, * * * where several instruments of writings are made as part of one transaction, they will be read, or construed, together, and each will be construed with reference to the other. This is true even though the instruments involved do not in terms refer to one another
Similar comments on the problem of construction and interpretation of a contract consisting of more than one document is found in 3 Corbin on Contracts, pp. 188-192, § 549:
“In many cases * * * the terms of agreement may be expressed in two or more separate documents, * * *
In every such case, these documents should be interpreted together, each one assisting in determining the meaning intended to be expressed by the others.
“This is true whether the documents are all executed by a single party or by two or more parties, and whether some of the documents are executed by parties who have no part in executing the others. A transaction may be tri-partite or even more complex, a factor that must not be disregarded in the process of interpretation of any of the documents.
“Internal references to one document to another are often helpful in the processes of interpretation and adjudication; but the absence of such a reference does not make a document unusable in these processes or inadmissible in evidence. Its connection and relevancy can be established otherwise.”
The condition of St. Paul’s indemnity bond is for payment of all loss sustained by Tennefos. It was issued by St. Paul to protect Tennefos against any failure of Cox in fulfilling its obligations under the joint venture agreement, which necessarily covers Cox’s performance in carrying out its share of the South Dakota Highway contract.
The performance bond issued by United Pacific covering the construction project of the joint venturers was much broader than the usual performance bond, which ordinarily covers only claims for labor and material. This bond specifically covered “all just claims for materials, supplies * * * labor, and all other just claims incurred by him or any of his subcontractors in carrying out the provisions of this contract.” And was specifically held by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra, to include bank loans advanced on this particular project; and expressly held at 287 of 132 N.W.2d:
“* * * the obligation assumed under the bond is determined by construing it together with the contract, and when so viewed it is extremely broad. Also emphasized is the principle that the bond should be construed most strongly in favor of indemnity.”
St. Paul expresses surprise at the holding of the State Supreme Court in the Ed Cox and Son case but an examination of an earlier South Dakota case, J. F. Anderson Lumber Co. v. National Surety Co., 49 S.D. 235, 207 N.W. 53 (1926) would show a similar holding on an identical provision of “and all other just claims.” The Court in Anderson reasoned at 57:
“The appellant surety voluntarily undertook an obligation so broad in its terms that it would be difficult to define the extremities of its scope as applied to various possibilities. No case has been cited to us by counsel for either party to this appeal, where the obligation of the surety is shown to be as broad. [And the obligation of appellant’s surety] * * * includes, not only ‘labor’ and ‘material,’ but ‘supplies,’ tools, appliances, * * * and all other just claims incurred by him * * * in carrying out the provisions of the contract.”
By virtue of the joint venture agreement, Cox as principal and St. Paul as surety were obligated to furnish a bond similar in form to the bond required by the South Dakota Highway Commission and furnished by United Pacific. Similar in form would clearly indicate that at least as broad a coverage must be furnished by Cox and St. Paul as was required by the State and furnished by United Pacific. In other words, the construction contract and the performance bond given in connection therewith were a joint undertaking of Cox and Tennefos and in the contemplation of the parties any bond furnished pursuant to the joint venture agreement must afford protection to the obligee equal to the obligation of Cox and Tennefos to the State of South Dakota. This is a diversity case wherein the law of South Dakota applies and that State’s interpretation of its law is binding on all of the parties. The contract bond furnished by St. Paul by its terms is clearly capable of being interpreted as covering the loss in question. St. Paul was obligated to furnish a bond as broad as that furnished by United Pacific and under which the loss in question was established as an ultimate liability against Tennefos. St. Paul should now not be heard to say that its bond afforded less coverage than it was obligated to afford under the joint venture agreement.
In summary, we think the four instruments must be read together as they form the basis for a single transaction. In construing these instruments we think the coverage of the St. Paul bond must be at least equally as broad as Cox and Tennefos furnished the State. The St. Paul bond would also cover Tennefos’s loss sustained by reason of Cox’s failure to pay “all just claims.” The money loaned to Cox by the Bank was determined to be a just claim by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra. This judgment was paid to the Bank by Tennefos thus causing him a loss which is directly attributable to Cox’s failure to perform its obligation under the joint venture agreement. Since St. Paul’s bond agrees to indemnify Tennefos against all loss sustained by Cox’s failure to comply with the terms of the joint venture agreement, the loss suffered by Tennefos and occasioned by Cox clearly comes within the terms of St. Paul’s bond.
Judgment affirmed.
“11. Furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” (Emphasis supplied).
. The parties will be referred to as listed below or by their abbreviated name designation. Ed Cox & Son, a partnership, will be referred to as an entity.
. The pertinent clause reads:
“Now, Therefore, the condition of the foregoing obligation is such that if the Principal shall indemnify the Obligee for all loss that the Obligee may sustain by reason of the Principal’s failure to comply with any of the terms of said contract, then this obligation shall be void; otherwise it shall remain in force.”
. The pertinent part of Tennefos’s indemnity agreement contained in the application for contract or bid bond reads as follows:
“To indemnify, and keep indemnified, the Company, against all loss, costs, damages, expenses and attorneys’ fees whatever, and any and all liability therefor, sustained or incurred by the Company by reason of executing or procuring the execution of any said bond or bonds, * * * or sustained or incurred by reason of making any investigation on account thereof, prosecuting or defending any action brought in connection therewith, * * *. Payment of any such amounts to the Company shall be made by the undersigned as soon as the Company shall be liable therefor, whether or not it shall have paid out any portion thereof.”
. The pertinent part of the letter reads:
“To resume operations on this project, it would appear that Ed Cox & Son will need some financing to meet payrolls and material bills, and equipment rentals during the interim etween the receipt of periodic progress payments from the State.
“Should you undertake to finance Ed Cox & Son’s continued operations on this project until final completion thereof, under arrangements whereby you exercise control over advances made by you so that such advances are used only to cover payrolls, supplies and material bills, and equipment rentals incurred in connection with this job, we shall have no objection to your being reimbursed for such advances out of the monthly progress payments.
“However, inasmuch as labor and material suppliers have an equitable lien on the proceeds of the contract we must ask that you agree that no part of Ed Cox & Son’s present indebtedness to you will be paid out of progress payments hereafter received until the job is finally completed, and all labor and material bills incurred on it have been paid. So far as that present indebtedness is concerned you will look only to any excess funds remaining after all labor and material bills are paid on this job, and to any other asset of Ed Cox and Son.
“ * * * * * *
“Signed
“St. Paul-Mercury Indemnity Co.”
. The record indicates that the Bank made further advances to Cox after the letter of April 3, 1956 and that the Bank was reimbursed for those advances by Tennefos upon instruction to do so by St. Paul.
Plaintiff’s exhibit No. 10 is a letter dated August 23, 1956 in which St. Paul authorizes payment of $42,721.39 to the Bank for the account of Cox for “!! * * current estimate for work done.” Also in a telegram of apparent date of July 11, 1956, St. Paul authorizes Tennefos to release to the Bank all proceeds Tennefos was then holding arising out of the first estimate of work performed on the project.
The State trial court also made factual findings, (VI), indicating that after crediting all payments to the Bank made both prior and subsequent to March 1956, there remained owing to the Bank sums in excess of some $149,000.
. The District Court judgment may, therefore, be affirmed by this Court on a legal theory different than the theory announced by the District Court if we think the judgment was correct based on the record before us. Barunica v. United Hatters, Cap and Millinery Workers, Local Number 55, 321 F.2d 764, 765-766 (8 Cir. 1963) ; State Mutual Life Assur. Co. of Worchester, Mass. v. Fleischer, 186 F.2d 358, 364 (8 Cir. 1951).
. That agreement in part reads:
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BRIGGS & STRATTON CORPORATION v. QUICK ACTION IGNITION CO.
No. 6271.
Circuit Court of Appeals, Seventh Circuit.
Nov. 4, 1937.
Rehearing Denied Dec. 14, 1937.
Ira Milton Jones, of Milwaukee, Wis., and George A. Chritton and Richard Spencer, both of Chicago, 111., for appellant.
N. S. Amstutz, of Valparaiso, Ind., and John G. Yeagley and J. Walter Yeagley, both of South Bend, Ind., for appellee.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Sought to be reversed is a decree finding valid and infringed claims 7 and 8 of patent No. 1,275,294 and claim 3 of patent No. 1,338,151, both assigned to appellee by the inventor Oglesby. The first is for "a combined internal combustion engine and magneto,” and the second, “detachable magneto-armature heads and core.” The claims appear in the footnote. •
Oglesby’s device of patent No. 1,275,-294, had to do with a magneto attached to and combined with an internal combustion engine. The application was dated January 5, 1917, and the grant, August 13, 1918. The suit included claims 1 to 6 of the first patent, as well as claims 7 and 8, but the District Court refused to grant relief upon all except 7 and 8. Appellant insists that the patent is anticipated by prior patents and uses, and that, in view of the existing prior art, only mechanical skill was involved in devising the combination claimed.
Claims 7 and 8 of patent No. 1,275,294 describe a combination of the prior art flywheel magneto applied to the well known crankcase of an internal combustion engine (Múeller 1,147,038), centered and mounted upon the front of the crankshaft of such case. Flywheel magnetos were old, but appellee claims that Oglesby achieved more efficient operation at low speed and greater ease of assembling. Specifically it relies upon the combination of a crankcase wherein the rotating shaft carries a removable end plate, which also serves as a bearing for the shaft, an armature on the plate, a circuit breaker and condenser “placed adjacent thereto” or “supported on the crankcase end plate, adjacent the path of travel” of a field magnet, adapted to pass by the armature, and a cam carried by the shaft for operating the circuit breaker to produce periodic currents of an undirectional character in the armature coil as the shaft is revolved. This, it says, is a combination both novel and useful, constituting a product of inventive genius.
Claims 7 and 8 differ from claims 1 and 6, upon which the court refused to grant relief, only by adding the circuit breaker and operating it by means of a cam carried by the shaft, and a careful analysis of the evidence convinces us that the claim for distinction between Oglesby and the prior art must lie chiefly in the alleged addition of this element. Mueller, in patent No. 1,-147,038, built a unitary compact fly-wheel magneto mounted upon the crankshaft, but he did not provide that the plate upon which the magneto was mounted should be utilized also as the end plate of the crqnk case. He recognized that the generator type flywheel magneto for internal combustion engines was old in the'art and alleged that he was endeavoring to simplify the structure, reduce the cost of construction, and more fully to expose the timer mechanism and electrical connections, whereby repairs and readjustments might be facilitated. He placed the magneto at the end of the crankshaft, but he did not, as Oglesby did, substitute for the conventional crankcase end plate, the outer surface of the magneto container. He specified that, in his combination there should be used “a circuit interrupter,” but he did not use the specific construction or location of Oglesby. We are convinced that all that Oglesby did was to take Mueller’s crankcase and mount it on the crankcase so as to obviate the use of the conventional end plate by substituting in lieu thereof the old mounting plate of flywheel magnetos, such as Mueller, and relocate the circuit breaker. Apparently all that a skilled mechanic dealing in the art, with Mueller before him, needed to do, in applying the flywheel magneto of Mueller to the conventional internal combustion engine crankshaft, was to make these changes. The elements of both magnetos are the same, and the results obtained are identical.
Nor was Mueller the first to mount his magneto upon the end of the crankcase. Podlesak, 948,483, application filed 1901, mounted a magneto in the flywheel of the engine at the head of the crankcase and provided a make and break ignition mechanism accomplishing the interruption to the current by the use of a cam oscillated and retained in any desired position of adjustment. This make and break connection, he said, might “be of any well known and suitable construction.”
Oglesby was delving in an active and rather crowded art, and the question arises, Did he make a combination, similar to those which existed previously, performing the same functions that those .performed, of such greater facility, ease, and simplicity as to constitute invention? Is what he did anything more than what would have occurred to any ordinary skilled engineer with the prior art before him?. .We think not.
We think that the most that can be said is that he gave a somewhat different form to a familiar combination, using the same elements, without achieving from them any new functions and without accomplishing any new result; that he merely carried forward the original thought by eliminating one plate on the end of a crankshaft and by a slightly different location of the recognized essential circuit breaker. These two changes it seems to us did not involve invention. They were rather a mechanical readaptation of familiar devices.
We have not mentioned the prior uses. The testimony of both parties as to the dates of conception of respective devices is based largely upon oral testimony as to what occurred more than 15 years before without substantiating documentary evidence. Oglesby testified originally that his date of conception was in 1917. He subsequently changed his story and offered the testimony of other witnesses, depending entirely upon their personal recollection, to carry his date back to early 1915. Appellant produced rather convincing testimony of a prior use of what, to our thinking, constitutes an anticipatory device by Evinrude, but again the testimony is almost wholly dependent upon the parol testimony of witnesses as to personal recollection of long past events. If Evinrude was first, as we are inclined to believe, for it was certain that his device was conceived in the fall of 1914 and the very first of 1915, his teachings were clearly anticipatory of everything that Oglesby did. The location of the circuit breaker was not the same, but with the recognition of the essential presence of a circuit breaker, its location again was a matter of the exercise of mere mechanical skill. However, in reaching our conclusion we have not grounded it upon the alleged prior uses. It is not necessary to do so in view of our conclusions as to the effect of the prior art in the way of prior patents.
Courts are loathe to ground final decisions as to priority upon the parol testimony of witnesses, many of whom are related by consanguinity or other ties, as to events having to do with the precise and detailed construction of a specific electrical combination some twenty years ago. Consequently we have preferred to base our conclusion upon the documentary evidence rather than upon the parol testimony.
In patent No. 1,338,151, Oglesby claimed that he had created an improvement in a magneto core structure which included duplicate laminae groupings adapted to be interlaced so as to permit prewinding of the coil apart from the core assembly and the duplicate laminae groupings then assembled with the coil and, when assembled, forming a winding space in which the coil is received, which space is “between and beneath the heads.” The claim includes the word “beneath.” In our opinion it was inadvertently included and should be given no effect. But we are further of the opinion that British patent No. 14,732 of 1902 discloses a structure so similar to that of Oglesby as to be identically equivalent thereto. In each are armature arms; in each, winding of a coil on a space between the armatures, which are open at the opposite side of the device. If we were to give any effect to the word “beneath,” clearly the device of appellant would not come within the teaching of the patent. But, ignoring that word, we are unable to perceive that there is any invention in this patent. If it should be held valid, there is no infringement.
The decree of the District Court is reversed, with directions to proceed in accord with this opinion.
Claims 7 and 8 of patent No. 1,275,-294. Claim 7 — In internal combustion engines, a crankcase, a shaft rotatable therein, a removable end plate for said case also serving as a bearing for shaft, an armature supported by the plate, a circuit breaker and condenser placed adjacent thereto, a field magnet attached to the shaft adapted to pass by the armature, and a cam carried by the shaft for periodically operating the circuit breaker as the shaft is revolved.
Claim 8 — In internal combustion engines, a crankcase, a removable and plate therefor, a crankshaft rotatable therein, a fly wheel a field magnet and cam carried by the shaft, an armature comprising a coil connected to a circuit breaker and condenser supported on the crankcase and plate adjacent the path of travel of the field magnet, and adapted through such rotation to have periodic currents generated in its coil and the circuit breaker actuated by the cam as the shaft revolves.
Claim 3 of patent No. 1,338,151. An article of manufacture comprising a combined magnet core and curved head lamination formed integrally with each other, similarly formed duplicate laminae assembled adjacent each other to constitute a group, independently formed head laminae similarly curved and assembled adjacent the other heads to constitute a half-core unit, duplicate core and head parts constituting a second group, similarly shaped, curved heads assembled with the heads of the second group, to also constitute a half-core unit both units being assembled together so as to form a winding space between and beneath the heads.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_state
|
31
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America v. Roman Stanislaw RYBA, Appellant.
No. 19249.
United States Court of Appeals, Third Circuit.
Argued Dec. 15, 1970.
Decided April 23, 1971.
Emil Oxfeld, Rothbard, Harris & Oxfeld, Newark, N. J., for appellant.
W. Hunt Dumont, Asst. U. S. Atty., Newark, N. J., Frederick B. Lacey, U. S. Atty., Newark, N. J., for appellee.
Before HASTIE, Chief Judge, and FREEDMAN and GIBBONS, Circuit Judges.
Judge Freedman heard argument and participated in the consideration of this appeal but died before decision.
OPINION OF THE COURT
HASTIE, Chief Judge.
The appellant, an alien and a selective service registrant, has been convicted of willful failure to report for induction into military service. His principal contention on this appeal is that he was improperly denied the right, given by statute to aliens other than those admitted for permanent residence, to elect whether he shall submit to or be relieved of the obligation of service in the armed forces.
Before 1951 this right was enjoyed by permanent resident aliens as well. Selective Service Act of 1948, ch. 625, § 4(a), 62 Stat. 605. But since that time a “male alien admitted for permanent residence,” no different from a male citizen, has been fully liable for training and service in the armed forces. 50 U.S.C. App. § 454. The government contends that the appellant is an “alien admitted for permanent residence.”
At the age of 14 the appellant, with his mother and sister, emigrated from his native Poland and entered the United States through regular immigration procedures. They joined his father, who had entered the country a year earlier, and took up residence as a family in Newark, New Jersey. There the appellant attended elementary school and high school. At the age of 18 he registered for selective service. As a then high school student he was classified 1-SH. After his graduation from high school and an unsuccessful effort to obtain a hardship deferment, he was classified 1-A, found physically qualified for induction and ordered to report for induction. He did not report. Subsequently he was arrested and charged with willful failure to report for induction.
After he had been indicted, the registrant for the first time informed his board that he sought relief as an alien entitled to elect whether he would be liable for military service. The board declined to reopen his case, thus refusing to recognize him as such an alien as the law permits to avoid military training and service.
The present record indicates, without any evidence or basis for implication to the contrary, that the 14-year-old appellant was admitted to this country with his mother as an immigrant privileged to remain permanently. In an effort to avoid this conclusion it is argued that as an infant he had made no effective choice of status. But that is beside the point. The law determines and specifies immigrant status objectively upon the basis of the circumstances and conditions of entry. Cf. United States v. Rumsa, 7th Cir. 1954, 212 F.2d 927, cert. denied, 348 U.S. 838, 75 S.Ct. 36, 99 L.Ed. 661. Thus it is provided by statute that “[t]he term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101 (a) (20).
The registrant’s selective service board had adequate basis for subjecting him to induction as an alien admitted for permanent residence, if only because at the time of registration he signed and filed with the board a questionnaire which specified that he was an alien admitted for permanent residence. And though it is contended that the clerk of the board assisted and guided him in filling out the questionnaire, nothing appears even now to indicate that the statement of his status at that time was incorrect.
Neither is there any evidence of a change of status. There is a prescribed statutory procedure by which certain aliens lawfully admitted for permanent residence can have their status “adjusted” by the Attorney General. 8 U.S.C. § 1257. But the registrant’s situation is not covered by that statute. Moreover, assuming that his status could be changed by some action of an agency charged with the administration of the immigration laws, no request for such alteration of status has been made. Rather, after having been indicted for failure to report for induction, the registrant sought relief from his selective service board as if that agency had power to change his immigrant status. In these circumstances the board properly refused to grant relief.
No other issue of substance is presented by this appeal.
The judgment will be affirmed.
. Any male alien between the ages of 18 and 26, “who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year (other than an alien exempted from registration under this title and regulations prescribed thereunder) shall be liable for training and service in the Armed Forces of the United States, except that any such alien shall be relieved from liability for training and service under this title if, prior to his induction into the Armed Forces he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President; but any alien who makes such application shall thereafter be debarred from becoming a citizen of the United States. * * * ” 50 U.S.C.App. § 454(a).
. Selective Service Regulation 1622.42(b) provides as follows:
“(b) In Class IV-C shall be placed any registrant who is an alien and who has not been admitted to the United States for permanent residence but who has remained in the United States for a period exceeding one year and who has, prior to his induction, made application to be relieved from liability for training and service in the Armed Forces of the United States by filing with the local board an Application by Alien for Relief from Training and Service in the Armed Forces (SSS Form 130), executed in duplicate. * * * ”
. The House Report explaining the provision reads:
“Aliens who meet the qualitative tests and are eligible for admission into the United States are classified under existing law as either immigrants or nonimmigrants. The immigrant class includes those aliens who seek to enter the United States for permanent residence, while the nonimmigrant class includes those aliens who seek to enter for temporary periods of stay. The present law, and the instant bill, provide that all applicants for admission who do not qualify as nonimmigrants are to be regarded as applicants for admission as immigrants.” H. Rep.No.1365, 82nd Cong., 2d Sess., 1952 U.S.Code Cong. & Ad.News, pp. 1653, 1689.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_casetyp1_1-3-1
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P
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Appellee, v. William J. CINTOLO, Defendant, Appellant.
No. 85-1615.
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1987.
Decided May 1, 1987.
Francis J. DiMento with whom DiMento & Sullivan, Boston, Mass., Anthony M. Traini, Leppo & Traini, Randolph, Mass., Norman S. Zalkind, Robert L. Sheketoff, Kimberly Homan, David Duncan and Zalkind, Sheketoff, Homan & Rodriquez, Boston, Mass., were on brief, for defendant, appellant.
Max D. Stern and Stern & Shapiro, on brief, for Nat. Network for the Right to Counsel, amicus curiae, and Harvey A. Silverglate, Andrew Good, and Silverglate, Gertner, Baker, Fine, Good & Mizner, Boston, Mass., on brief, for Massachusetts Ass’n of Criminal Defense Lawyers, amicus curiae.
Diane M. Kottmyer, Sp. Atty., Dept, of Justice, with whom Stephen P. Heymann and Jeremiah T. O’Sullivan, Sp. Attys., and Robert S. Mueller III, U.S. Atty., Boston, Mass., were on brief, for appellee.
Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.
SELYA, Circuit Judge.
This case deals with the manner in which one member of the criminal defense bar chose, in his own sense, to read and to act upon the bitter letter of the law. In the bargain, the case presents important questions concerning the relation of an attorney to the fabric of federal law which Congress has woven to prevent obstruction of justice.
In December 1984, a grand jury sitting in the District of Massachusetts returned an indictment against William J. Cintolo, a practicing criminal defense attorney, charging him with one count of conspiracy to obstruct justice, 18 U.S.C. §§ 371, 1503, and two substantive counts of obstruction of justice, 18 U.S.C. § 1503. After a lengthy trial, the jury found the defendant guilty on the conspiracy count, but not guilty on the substantive obstruction counts. Cintolo was thereafter sentenced to a prison term, the execution of which was stayed pending appeal. We affirm.
When the sufficiency of the proof is challenged on postconviction appeal in a criminal case, we necessarily view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Medina, 761 F.2d 12, 16 n. 3 (1st Cir.1985); United States v. Tierney, 760 F.2d 382, 384 (1st Cir.), cert. denied, — U.S. -, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985); United States v. Davis, 623 F.2d 188, 195 (1st Cir.1980). Drawing all legitimate inferences which tend to support the government’s case, United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981), and resolving any conflicts in the evidence against the appellant, United States v. DeLucca, 630 F.2d 294, 300 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981), our task is to determine whether “the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, [are enough that] a rational trier of the facts could have found the appellant guilty beyond any reasonable doubt.” Tierney, 760 F.2d at 384. See also United States v. Drougas, 748 F.2d 8, 15 (1st Cir. 1984); Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). With that standard in mind, we proceed to survey the evidence adduced in this case.
I.
Cintolo’s indictment and ultimate conviction grew out of the judicially sanctioned electronic surveillance of an apartment at 98 Prince Street in Boston’s North End. These premises were used by Gennaro Angiulo and his associates as a headquarters and office for the operation of illegal gambling and loansharking businesses. “Loansharking” is a term of criminal art which may roughly be defined as the unlawful lending of money at usurious rates of interest, repayment being encouraged by the employment (or threatened employment) of unorthodox collection measures, involving, inter alia, the breaking of bones.
The Federal Bureau of Investigation (FBI) monitored the conversations which took place on the premises from January 19 to May 3, 1981. The surveillance was conducted primarily by means of hidden microphones clandestinely emplaced within the apartment. These devices recorded conversations between Angiulo and his confederates, including Cintolo. In addition, a concealed exterior camera surreptitiously photographed persons entering and leaving the headquarters.
What this intensive scrutiny revealed visa-vis the appellant can usefully be summarized by reference to the true bill which the grand jury returned. The indictment charged that Cintolo conspired with Angiulo and others to violate 18 U.S.C. § 1503. The gravamen of the accusation was that Cintolo did “corruptly endeavor to influence, obstruct and impede the due administration of justice” by befouling the proceedings of a federal grand jury investigating the criminal activities of the Angiulo gang. According to the indictment, Cintolo set out to accomplish this nefarious end through the use of his position as attorney of record for Walter LaFreniere, a witness before the grand jury, to acquire information about the ongoing investigation for Angiulo’s benefit. The indictment further charged Cintolo with knowingly assisting Angiulo in his efforts to inhibit LaFreniere, after the latter had been granted immunity, from testifying truthfully before the grand jury, or from cooperating in any way with the investigation.
Tape recordings played for the jury at Cintolo’s trial established that LaFreniere and his father-in-law, Louis Venios, possessed damaging information linking various members of Angiulo’s organization to illegal gambling and loansharking activities. Among other things, the evidence disclosed that both Venios and LaFreniere had been extended substantial credit to cover unpaid gambling debts, and that each had been subjected to exacting pressure from various of Angiulo’s minions to remit the overdue sums. When subpoenas issued to Venios and LaFreniere indicating that the grand jury was investigating possible violations of 18 U.S.C. §§ 892-94 (making, financing, and collecting extortionate extensions of credit), Angiulo recognized the legal peril which faced him and his confreres. Notwithstanding that on March 12, 1981, after first being interviewed by FBI agent Quinn, LaFreniere appeared before the grand jury and refused to testify on fifth amendment grounds, Angiulo remonstrated with his brother, Donato:
Remember, they’re not sayin’ this or this or that. They’re saying, “Angiulo”... “Angiulo.” It might be me, you, him, him, and him, too. Nobody knows. Under RICO, no matter who... we are, if we’re together, they’ll get every... one of us.
* * # * * *
We’ve been sleepin’____ As soon as that • • • guy got that... summons, shoulda got a kid like Cintolo and said, “You hire a... detective and tell him to stand at that grand jury. I want to know everybody that goes in there.”
Following extended discussions among Angiulo and his cohorts, assessing the extent of LaFreniere’s knowledge and speculating on the possible foci of the grand jury’s investigation, Donato Angiulo sent LaFreniere to meet with the appellant. Shortly thereafter, the lawyer assembled with Gennaro Angiulo and others — not including LaFreniere — to discuss the sweep of the grand jury inquiry and Cintolo’s newfound “client.” At this session, Angiulo told Cintolo that “about three and a half, four weeks ago,... these guys should have gotten you and told you what I wanted.” Angiulo explained that LaFreniere had been delivering payments to him on behalf of Venios, and that LaFreniere’s name appeared on a “cuff sheet,” i.e., a written list kept to show amounts of borrowings and identities of borrowers. (The cuff sheet in question related to an illegal “barbooth game” operated by Angiulo’s son, Jason.)
Angiulo then told Cintolo the questions which had been propounded to Venios before the grand jury. These questions concerned, inter alia, whether Venios had ever “okay[ed] Walter LaFreniere for money with someone or anyone on the shy-lock.” (In the vernacular, “shylock” and “loanshark” are roughly synonymous terms.) Venios’s discretion and loyalty had been tested over time, and Angiulo appeared to have considerable confidence in him. Yet, Angiulo was plainly apprehensive over the family’s potential exposure should LaFreniere fail to “stand up,” i.e., to go to jail rather than to testify truthfully before the grand jury. Angiulo mused, “why is this worrying me? This kid owes money on the shark____ [Hje’s gotta be protected. This kid should never have gone to the grand jury by himself.”
The appellant immediately reassured Angiulo. Cintolo told him that he had already “got out of” LaFreniere a list of the questions asked both in the FBI interview and in the grand jury. Cintolo then recounted these questions and LaFreniere’s responses thereto for Angiulo’s benefit. The conversation concluded with Angiulo instructing the appellant to call LaFreniere in and size him up. Angiulo told Cintolo: “I got a decision to make. I want to have it all in front of me. Louis I can believe. This kid? Double talks.”
On March 19, 1981, Wendy Collins, a federal prosecutor, notified LaFreniere to report to the grand jury the following Thursday. That evening, Cintolo spoke with Angiulo:
Angiulo: You going to explain to him that you feel that he’s gonna get immunity? There’s no other way out of it, is there? Huh?
Cintolo: No. I, I’ll explain it to him. Figured somebody else might want to talk to him first____
Angiulo: His father-in-law says already that as far as this kid is concerned, one thing you can say he’s a... man. If he’s got time to do, he’ll do it. But I don’t think they figure on immunity. You understand? They’re not that... smart. Did we find out anything about this grand jury?
Cintolo: Nothing yet.
Angiulo: I would say you call him in, have a good talk, and give me a reaction.
Cintolo: Yeah.
Angiulo: So that this kid understands that he might just go and do eighteen... months.
Later that evening, Angiulo conferred with two of his henchmen, Richard Gambale and Peter “Doc” Limone, soliciting their views as to whether LaFreniere would “stand up.” Apparently uneasy at what he heard, Angiulo ordered them to kill LaFreniere:
Tell him to take a ride, Okay? Went somewhere, the kid will just say to you, get out of the car and you stomp him. Bing! You hit him in the... head and leave him____ Meet him tonight____ Just hit him in the... head and stab him, okay. The jeopardy is just a little too much for me.
FBI agents monitoring the electronic surveillance equipment overheard Angiulo hand down this death sentence. They moved immediately to warn the intended victim. LaFreniere acknowledged that he had been contacted and was scheduled to meet with “someone” later that day. He refused to disclose the identity of the person who had made the overture, but Gambale subsequently revealed himself to the government’s electronic ear as the mystery caller, informing Angiulo that LaFreniere had resisted his suggestion that they meet “for a drink.”
On March 20, Angiulo was told that LaFreniere had been attempting to reach Cintolo. Angiulo advised the lawyer that LaFreniere had been tipped about the “contract” which had been placed on his life:
[T]he Feds called him and said to him, “we got an informant in the North End. He just informed us that you have been placed on the hit list down there____” Words to that effect.
Cintolo's only response to this grisly piece of news was to mention calmly that he had instructed LaFreniere to talk with no one, and to refer all calls to him. Angiulo continued:
They, supposedly, they told him, “look, what we’re telling you, don’t repeat it, ‘cause you’ll blow the cover of the guy we got down there talking to these people who knows what it’s all about.” Very, very interesting. Because, nowhere along the line did anyone talk about handling it. More important than that, if someone did talk about it, though... no way would they talk where it would be, aah, susceptible to anyone excepting individuals that would be interested in it to begin with.
This particular conversation concluded with Angiulo instructing Cintolo to meet with LaFreniere again and “to evaluate [the situation] very carefully.”
There followed a series of discussions at the apartment in which Angiulo voiced grave (and mounting) concern over his organization’s vulnerability vis-a-vis LaFreniere. The recurring theme of each conversation, significantly, was that LaFreniere be coerced into “standing up” — to serve an eighteen month sentence for contempt— rather than to accept immunity gracefully and testify freely before the grand jury. Angiulo ordered that pressure of divers kinds be brought to bear. At one juncture, he suggested that LaFreniere be told:
Hey you, you answer these... questions you’re gonna get yourself in trouble, you’re gonna get everybody in trouble. Do yourself a... favor____ Go to the can until we find out a little more about this... thing.
At another point, Angiulo instructed William “Skinny” Kazonis, another crony, that he was not to allow LaFreniere to tell the truth under any circumstances:
He’s gotta be taken out and told... he’s not answering____ First, we’re gonna try to find out, to know a little more than what they found. Second, it’s your... responsibility to make sure this kid keeps his... mouth shut____
Much the same sentiments were communicated to Venios:
Angiulo: He’s got immunity.
Venios: Yah.
Angiulo: In plain English, he either answers or he’s going to jail.
Venios: ____to jail, yah.
Angiulo: We’re all set up for him?
Venios: Yah.
During this same meeting, Angiulo explained that his own son, Jason, was in an equivalent position. “He can answer until they ask him the $64 question, which is the question that will get somebody in trouble. After that, just pack it in and go to the can.” Angiulo repeatedly reminded Venios of the jeopardy which any cooperation by LaFreniere with the grand jury would pose, and for good measure added a thinly-veiled threat:
If this kid has got the smarts, I’m gonna tell him to go in and answer some of these questions. Then Billy will defend him for perjury. What... is the difference whether he does eighteen for the grand jury or he gets three years for perjury?
Angiulo later told the appellant of Venios’s continued assurances that LaFreniere would “stand up.” According to Angiulo, Venios had been ordered to remind his son-in-law that this was no avuncular request, but a command from the organization: “You got to tell this kid that we said it, not you. Us. No guy will go to the can here for any reason.” So, Angiulo indicated, Cintolo’s “client” fully appreciated the personal risk he would run by cooperating with the grand jury.
In the course of the conversation, Angiulo remarked to Kazonis, “Drink up, Skinny, you might go away tomorrow... obstructing justice. Eight, Billy?” The following exchange then took place:
Cintolo: ____ And I went over that with him very, very carefully. That the maximum you can do is eighteen months or the life of the grand jury, whichever is shorter.
Unknown Male: Yeah.
Angiulo: Coming from you.
Cintolo: And then he said to me, “how long does the grand jury sit?” I said, “the grand jury sits for thirty-six months”’
Angiulo: Well he’s thick, he doesn’t understand about thirty-six months. But you gotta understand, coming from you that’s the story. Coming from him, that’s saying “Listen I was there,..., and no matter where you go, might take, might take a week, two weeks, three weeks to get to you, but we’ll get to ya.” Do you understand? Do you understand what I’m talking about? The difference.
Kazonis: Well I convinced him already, for tomorrow forget about____
Angiulo: In fact, what he wanted to do was, when he got through with Skinny, he wanted to just go home and get his... underwear and go, go, go away.
On March 26, in Cintolo’s absence, Angiulo described how LaFreniere had reacted to Kazonis’s importunings:
“The lawyer told me I had to go do thirty-six months. I told my wife, I gotta go away for three years. Crazy, my lawyer expects that. Don’t tell me,” he says, “[the] lawyer talked to me; he told me to go away for thirty-six months.” (Emphasis supplied).
On March 31, the appellant met briefly with Angiulo to plot strategy. By this time, it was obvious that Jason — who had been subpoenaed by the grand jury — was a target of the investigation and would not be offered immunity. Cintolo was, according to the plan which he and Angiulo had mapped out, to represent Jason as well as LaFreniere. The lawyer suggested that he could “have [Jason] plead the fifth.” To this, Angiulo responded:
Not yet, we shouldn’t. No, sir. We didn’t learn nothing. You understand, I want the questions specifically, and somewhere along the line he’ll be indoctrinated by me, if you wanna call it that.
When Cintolo said that he would “like to try to appeal” any court order disqualifying him from dual representation of both of these “clients,” Angiulo rejoined: “Why would you like to do anything? We are here only to discuss all of the ultimate measures to tell them to go [perform an anatomically unlikely act upon] themselves.”
On April 1, LaFreniere received immunity, thereby stripping him of the fifth amendment’s protection against compelled self-incrimination. Nothing daunted, Cintolo continued to participate in discussions with Angiulo and his subordinates in which the anticipated commission of contempt before the grand jury was frankly acknowledged as an objective. At one point Cintolo remarked, “they’ve got to figure if they can isolate [LaFreniere] in a sense... if they can pull him away from me,— Okay. If they can pull him away from me, then maybe they get something out of him. Whether he’s gonna voluntarily do it, or just by sheer ignorance he’s gonna blurt it out. I think that’s what they want.” (Emphasis supplied). Moments later, Cintolo added:
I talked to him____to evaluate what he’s saying to me — in fact, it was like I do with everybody: instill confidence in them, you know. I kept telling him, “I might not be able to help you out, but I can tell ya, I’ll fight like a son of a____” To get him into a confident situation, making him think that we can do what we’re saying we can do, and all of a sudden smack, he’s a... goner. (Emphasis supplied).
Discussions regarding the grand jury investigation continued throughout the month of April. The appellant was a regular participant. In one conversation, the group attempted to identify an individual whom they had spotted and believed to be an informant. In response to a query by Cintolo, Angiulo gave the following chilling command: “I don’t want to know about this guy no more. I want [Kazonis] to go see him____ We’ll... kill him once and for all.”
On April 23, LaFreniere appeared before the grand jury and, reading a statement prepared for him by Cintolo, refused to testify. Notwithstanding the immunity which had been conferred, the refusal was predicated on fifth amendment grounds. At a hearing on the government’s ensuing motion to compel, the duty judge dismissed Cintolo’s argument that the immunity bestowed upon LaFreniere was somehow inadequate as “clearly frivolous.” Upon leaving court, the appellant went directly to 98 Prince Street. Angiulo greeted him with the question, “Is he in jail, just say yes or no?” Cintolo responded, “Not yet.” The two men then dissected what had transpired at the grand jury in minute detail. At one point, the appellant informed Angiulo that the grand jury had queried LaFreniere about the contract on his life, volunteering that “I think they know about Richie [Gambale] and Peter [Limone].” When Cintolo mentioned that LaFreniere had already admitted having received an “invitation” to “meet,” Angiulo remarked that Gambale had indeed ventured such an initiative. “The dirty part of this, there’s no fiction here. They don’t have to fictionalize. He’ll give them the pieces. They’ll put the puzzle together.” Then, Cintolo adverted to LaFreniere’s professed desire to answer a few of the grand jury’s questions. The following exchange took place:
Angiulo: That’s why I think it’s starting to enter his mind, Billy. I don’t like the answers.
Cintolo: Maybe a couple of times, couple of... “Why couldn’t I answer these questions?”
Angiulo: Your answer to him is gonna be, when he says that to you, “Hey Walter, let me tell you something, huh: don’t ever come back to haunt me. With one of these questions, you’re gonna commit perjury because instead of doing eighteen months you gonna... go for five years.” But how you give it back you better be very... careful____ You hear me: very important, Billy, you gotta feel him out.
On June 2, 1982, LaFreniere was held in contempt in federal district court and was sentenced to an eighteen month term of incarceration, which he served in full. Cintolo represented him throughout the entire period of his immurement. He was disqualified by court order, however, from continuing to appear for Jason Angiulo.
At his own trial, appellant testified that, although he was aware of Angiulo’s involvement in illegal businesses, he had not acted with the intent corruptly to obstruct or impede justice while representing LaFreniere. To the contrary, he claimed to have been cooperating — or pretending to cooperate — with Angiulo solely to enhance his ability to counsel his true client (LaFreniere). The jury obviously disbelieved these assertions and drew a different set of inferences.
II.
From the facts established at trial, a sampling of which we have set out above, we find overwhelming evidence of a conspiracy among Angiulo and his associates to pressure LaFreniere — at all costs and by the nearest means — so as to prevent his testifying before the grand jury; in short, a conspiracy to violate 18 U.S.C. § 1503. Drawing reasonable inferences from the evidence in the light most hospitable to the government, we have no difficulty recognizing that the defendant lent his informed assistance to this conspiracy. Indeed, Cintolo’s counsel conceded as much at oral argument of this appeal, when he stated:
Cintolo knew that Gennaro Angiulo was doing his level best to influence Walter LaFreniere through other people, including Walter LaFreniere’s father-in-law, Louis Venios, to persuade Walter LaFreniere to “stand up” — in the vernacular, to refuse to testify — even though immunized, and to do an eighteen month sentence for contempt. There is no question that the evidence makes out a conspiracy, of which Gennaro Angiulo was at the head, to influence LaFreniere. And there is no question that Cintolo, knowing that, continued to represent LaFreniere... partly with a purpose to gain time and partly with a purpose to obtain information. Secondly, he passed on such information as he did have to the Angiulos — as, for example, what questions were being asked [in the grand jury]. Indeed, most everything he did played into the hands of Gennaro Angiulo.
Cintolo argues, however, that appearances are deceiving in this case; that his authentic motive in pursuing this perilous course of conduct was to obtain information from Angiulo that would assist him in representing the interests of LaFreniere. He portrays himself as a double agent of sorts, using the ringleader of the mob as the ringleader was attempting to manipulate him. While admitting that his behavior conferred benefits on Angiulo and on the hoped-for conspiracy of silence, the appellant maintains that those rewards were “incidental” to his obligation to represent LaFreniere as he thought best. Inasmuch as he did not intend to obstruct justice, the thesis runs, he cannot be guilty of conspiring to commit the substantive offense.
The short answer to this plaint is that the jurors, armed with considerable circumstantial evidence to support their assessment of the situation, deemed these protestations to be apocryphal. The slightly longer — but no less damning — answer is that the self-serving gloss which appellant thus places on the evidence manifestly misapprehends both the jury’s factfinding function and our role in the review of the verdict. The jury was reasonably entitled to disbelieve Cintolo’s testimony regarding his motives and to credit the (entirely plausible) contrary interpretation urged by the government. E.g., United States v. Cisneros, 448 F.2d 298, 305 (9th Cir.1971) (“A trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.”). Accord United States v. Machado, 804 F.2d 1537, 1549 (11th Cir.1986); United States v. Allen, 797 F.2d 1395, 1399 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986); United States v. Robinson, 774 F.2d 261, 278-79 (8th Cir.1985). Given that appellate oversight of this conviction must presume that the jury bought what the prosecution was selling, and recognizing that, in order to convict, the evidence need not exclude every reasonable hypothesis of innocence, we find adequate record evidence to sustain the conclusion that Cintolo knowingly and intentionally furthered the corrupt ends which Angiulo and his companions sought to achieve. Indeed, the evidence makes abundantly clear the sentient, purposeful participation by Cintolo in the scheme to envelop LaFreniere in pressure and intimidation so as to forestall any cooperation on his part with the grand jury. The fact that this participation was clothed, at least in part, in the mantle of superficially “professional” conduct does not exonerate the lawyer from culpability.
We understand the defendant’s argument that all of his conduct in the course of representing LaFreniere — meeting with Angiulo and his crew, shuttling information from the grand jury investigation to them, urging LaFreniere to invoke the fifth amendment privilege long after immunity had dissipated it — was performed with LaFreniere’s consent. But, even were we inclined to credit the claim that LaFreniere voluntarily acceded to actions by Cintolo aimed at sending him to jail in order to protect the Angiulo clan, no effective defense avails to Cintolo as a result. In any realistic light, the most authentic victim of Cintolo’s behavior was not his nominal client, but the due administration of justice. When federal law was violated, LaFreniere was powerless to legitimate the infraction by consenting to the commission of a crime.
This notwithstanding, appellant and the amici beseech us to announce an unprecedented rule of law designed, they contend, to insulate lawyers from encroachments on the “zealous representation” of clients accused of crime. So long as an attorney tenders a facially legitimate explanation for conduct performed in the course of his defense of a client, they urge, a factfinder must evaluate the behavior on that basis. In constructing this sort of paradigm, the lawyer’s word alone creates what amounts to an irrebuttable presumption which debars the jury — despite the existence of mounds of circumstantial evidence — from drawing contradictory inferences as to the attorney’s motives or intent. Put another way, if defense counsel’s actions of and by themselves do not amount to a crime, then a factfinder may not criminalize the conduct on the basis of conclusions reached, no matter how reasonably, about why the actions were performed. Hidden motivations, howsoever corrupt, remain forever hidden in a world where veniremen are not allowed to peer beneath the surface of things.
We find no support in precedent, principle, or policy for such an anti-lapsarian rule, and decline to cleave so deep a chasm in the criminal law for the exclusive benefit of attorneys who knowingly involve themselves in the corruption of their clients. As important a role as defense counsel serve — and we do not minimize its importance one whit — the acceptance of a retainer by a lawyer in a criminal case cannot become functionally equivalent to the lawyer’s acceptance of a roving commission to flout the criminal law with impunity. A criminal lawyer has no license to act as a lawyer-criminal.
The omnibus clause of 28 U.S.C. § 1503 makes it a felony to “corruptly endeavor to influence, obstruct or impede... the due administration of justice.” We have previously held that “[a]n effort to alter the testimony of a witness for corrupt purposes is plainly an endeavor to impede the due administration of justice.” United States v. Tedesco, 635 F.2d 902, 907 (1st Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981). It is altogether clear that interference with a grand jury investigation fits snugly within the contemplation of § 1503. E.g., United States v. Howard, 569 F.2d 1331, 1337 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978); United States v. Walasek, 527 F.2d 676, 678 (3d Cir.1975); United States v. Campanale, 518 F.2d 352, 366 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); United States v. Hubbard, 474 F.Supp. 64, 77 (D.D.C.1979). It is equally clear, from both the plain meaning of the statutory language and the caselaw interpreting it, that § 1503 criminalizes conduct which obstructs or impedes the due administration of justice, provided such conduct is undertaken with a corrupt or improper purpose.
We have held before, and reaffirm now, that “[i]f reasonable jurors could conclude, from the circumstances of the conversation[s], that the defendant had sought, however cleverly and with whatever cloaking of purpose, to influence improperly a [witness], the offense was complete.” Tedesco, 635 F.2d at 907 (quoting United States v. Lazzerini, 611 F.2d 940, 941 (1st Cir.1979)). See also United States v. Lazzerini, 611 F.2d 940, 941 (1st Cir. 1979) (quoting United States v. Roe, 529 F.2d 629, 632 (4th Cir.1975)). Correct application of § 1503 thus requires, in a very real sense, that the factfinder discern — by direct evidence or from inference — the motive which led an individual to perform particular actions. As Justice Holmes once aptly observed, “[i]ntent may make an otherwise innocent act criminal, if it is a step in a plot.” Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916). The appellant’s suggestion that the jury be precluded, as a matter of law, from drawing its own (reasonable) conclusions as to why any defendant — or, more narrowly put, a lawyer-defendant — committed acts not unlawful in and of themselves would do enormous violence to the statute and play unwarranted havoc with its enforcement.
We decline the invitation to rewrite the obstruction statute in such a sweeping fashion. Adoption of the rule which the appellant and the amici urge upon us would effectively divest the jury of the critical factfinding role which Congress, in the enactment of § 1503, specifically entrusted to it. Professors LaFave and Scott accurately note that “there are a number of instances in which... inquiry into why an act was committed is crucial in determining whether or not the defendant has committed a given crime.” W. LaFave & A. Scott, Handbook on Criminal Law 204 (1972). We find such an inquiry to be appropriate, indeed statutorily required, in the precincts patrolled by 18 U.S.C. § 1503.
Once it is conceded that the existence vel non of intent under § 1503 is a question of fact for the jury, it remains to define the parameters of behavior that can fairly be labelled as “corrupt,” ergo, criminal under the statute. General definitions tend to be circular. It has been said, for instance, that “[t]he term ‘corruptly’ is the specific intent of the crime.” United States v. Brand, 775 F.2d 1460, 1465 (11th Cir.1985). Yet, the term is admittedly susceptible to different meanings in different contexts. See United States v. Partin, 552 F.2d 621, 642 n. 26 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Courts have tended to interpret the requirement broadly, holding that it applies to the ends of an actor’s conduct rather than merely the means. E.g., United States v. Howard, 569 F.2d at 1334-35 (“the omnibus clause aims at obstruction of justice itself, regardless of the means used”), and cases cited therein. Thus, any act by any party — whether lawful or unlawful on its face — may abridge § 1503 if performed with a corrupt motive.
Our sister circuits have spoken to this subject with a single voice. “Any corrupt endeavor whatsoever, to ‘influence, intimidate or impede any... witness,... ’ whether successful or not, is proscribed by the obstruction of justice statute.” Catri no v. United, States, 176 F.2d 884, 887 (9th Cir.1949) (footnote
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:
|
sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
NATIONAL LABOR RELATIONS BOARD v. POOL MANUFACTURING CO.
No. 435.
Argued April 18, 1950.
Decided May 15, 1950.
A. Norman Somers argued the cause for petitioner. Solicitor General Perlman, Robert N. Denham, David P. Findling and Mozart G. Ratner filed a brief for petitioner.
John M. Scott argued the cause and filed a brief for respondent.
Mr. Justice Clark
delivered the opinion of the Court.
This case is a companion to Labor Board v. Mexia Textile Mills, ante, p. 563, decided this day. Respondent is a manufacturer of clothing in Texas, and is engaged in interstate commerce within the meaning of the labor relations acts. In December 1943, the National Labor Relations Board designated Local Union No. 251 of the United Garment Workers of America, affiliated with the American Federation of Labor, the exclusive bargaining-representative of certain of respondent’s employees. In December 1945, the Union charged the respondent with violations of §§8(1) and 8 (5) of the National Labor Relations Act in connection with a strike going on at that time. The Board’s complaint was issued pursuant to these charges in April 1946; a hearing was held; the Trial Examiner’s intermediate report was issued; and, since no exceptions to the report were entered by the respondent, the Board, on August 26, 1946, adopted the Trial Examiner’s findings, conclusions and recommendations, and ordered the respondent to cease and desist from its refusal to bargain with the Union. With certain limitations, the company was also ordered to offer reinstatement and back pay to employees who had gone on strike. 70 N. L. R. B. 540 (1946).
Two and one-half years later, on February 17, 1949, the Board petitioned the Court of Appeals for the Fifth Circuit for the enforcement of its order. Respondent moved for leave to adduce additional evidence. It stated that it had bargained with the Union since the date of the order, but that no agreement had been reached; that the Union had made no effort to bargain since early in 1948; that respondent questioned whether the Union retained the majority of employees in the bargaining unit, since certain employees had informed respondent that they had left the Union, and the Union’s organizer had stated, according to respondent, that a rival union had a “substantial group” within its membership; that these facts had come to respondent’s attention since the “record in the instant case was closed and completed”; and finally that the passage of the statute imposing a duty upon the Union to bargain with the respondent might affect the disposition of the case before the Board.
On May 13, 1949, the Court of Appeals for the Fifth Circuit entered an order identical in pertinent part with that quoted in Labor Board v. Mexia Textile Mills, ante, p. 563. We granted certiorari, 338 U. S. 909 (1950).
Although respondent concedes that the decision in the Mexia case governs the case at bar, a single issue may deserve separate treatment. In the instant case the Board waited two and one-half years before it sought enforcement of its order. There is a suggestion that the length of the delay may have influenced the Court of Appeals in ordering the Board to take evidence on the question of compliance. We regard this as doubtful, in view of its identical action in the Mexia case, when the petition for enforcement was filed only nine months after the Board’s order. But in any event we view the delay as without consequence in this case.
The Board is of course charged with primary responsibility in effectuating the policies of the Act. It has determined that those policies are advanced in some cases by resorting to the processes of negotiation with the employer rather than the compulsion, as well as the trouble and expense, of an enforcement decree. See § 202.13 of the Board’s earlier regulations regarding the Labor Management Relations Act, 12 Fed. Reg. 5651, 5653 (1947). In some cases delay in enforcement may be helpful in reaching an immediate solution of the problem; in others, exhaustion of negotiation techniques before a decree is requested may consume many months after the Board’s order and before such techniques fail. We are of the opinion that a strict judicial time limitation of the duration presented in the instant case would frustrate the deliberate purpose of Congress in permitting, but not requiring, resort to an enforcement decree. Cf. § 10 (b), which states a definite period of limitation regarding charges filed with the Board. Compare Labor Board v. American Creosoting Co., 139 F. 2d 193 (C. A. 6th Cir. 1943); Labor Board v. Electric Vacuum Cleaner Co., 315 U. S. 685, 697-698 (1942). We must not forget that the “question whether the settlement [with the employer] shall be accepted as definitive is for the Board to decide . . . Labor Board v. General Motors Corp., 179 F. 2d 221, 222 (C. A. 2d Cir. 1950). The employer, who could have obtained review of the Board order when it was entered, § 10 (f), is hardly in a position to object. Labor Board v. Todd Co., 173 F. 2d 705 (C. A. 2d Cir. 1949); Labor Board v. Andrew Jergens Co., 175 F. 2d 130, 134 (C. A. 9th Cir. 1949).
The contrary argument was made in more explicit terms in Labor Board v. Crompton-Highland Mills, 337 U. S. 217 (1949), a case also coming to us from the Court of Appeals for the Fifth Circuit. The Board’s petition for enforcement had been filed more than a year and three months after its order. In its brief in this Court as well as in response to the petition for enforcement in the Court of Appeals, the employer alleged that it had bargained collectively with the Union for nearly two years prior to the petition for enforcement, and that the Board’s order requiring collective bargaining should not be enforced. Noting the delay, respondent asked that it be afforded “an opportunity to prove the pertinent facts.” The Court of Appeals denied the Board’s “belated” petition for enforcement for a reason not pertinent here, coupled with “the earnest assertions by the respondent that it has complied with the Board’s previous order .. . .” 167 F. 2d 662, 663 (1948). This Court reversed, holding “that the Board’s order to cease and desist is justified, under the circumstances of this case . . . .” The Court stated that “Even though the employer, since January 1, 1946, may have carried on collective bargaining in good faith as to rates of pay and other matters, a decree enforcing the original order against making a general increase without consulting the collective bargaining representatives is justifiable. '. . . an order of the character made by the Board, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made.’ Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 271. See also, Federal Trade Comm’n v. Goodyear Tire & Rubber Co., 304 U. S. 257.” 337 U. S. at 225, n. 7.
We think the rationale of the Crompton-Highland case is persuasive here. Otherwise those intent upon violating the Act have a ready means of escape through the use of delaying tactics in negotiation, culminating in the filing of motions for leave to adduce evidence when enforcement is sought, thus effectively frustrating the Board’s order. We need not now face the question whether a Court of Appeals may under § 10 (e) refer a matter back to the Board for appropriate action on a showing by the employer that subsequent to the Board’s order, but before the petition for enforcement several years later, a rival union has filed before the Board a petition for recognition, not yet acted upon, which claims that the bargaining representative no longer has a majority of the employees. Nor need we decide whether a period of delay through its length alone may mature into a denial of an enforcement decree or make necessary the adduction of additional evidence. Cf. Labor Board v. Eanet, 85 U. S. App. D. C. 371, 179 F. 2d 15 (C. A. D. C. Cir. 1949). We decide only that in this case the Board’s delay in filing its petition was not fatal, and cannot save the order entered below. Like its companion, this order of the Court of Appeals must be vacated and the enforcement of the Board order decreed pursuant to § 10 (e), unless “extraordinary circumstances” are pleaded which justify the respondent’s failure to urge its objections before the Board.
It is so ordered.
[For dissenting opinion of Mr. Justice Frankfurter, joined by Mr. Justice Jackson, see ante, p. 570.]
49 Stat. 449, 29 U. S. C. § 151 et seq.; 61 Stat. 136, 29 U. S. C. (Supp. III) § 141 et seq.
Including the Trial Examiner’s rejection of the employer’s allegation that the Union no longer represented the majority in the bargaining unit.
“The Senate amendment followed the present language of the act, which permits the Board to petition for enforcement, but does not require it to do so. The conference agreement adopts the language of the Senate amendment.” H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess., p. 55.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
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).
Raymond CASIAS, Appellant, v. UNITED STATES of America, Appellee.
No. 7572.
United States Court of Appeals Tenth Circuit.
April 27, 1964.
William D. Swenson, Denver, Colo., for appellant.
Arthur L. Fine, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
This is an appeal from an order of' the District Court for the District of Colorado denying defendant’s motion for relief under 28 U.S.C. § 2255. A history of the prosecution is pertinent to the-present appeal.
In 1961, defendant was convicted upon two counts of an indictment charging him with the receipt, concealment and sale of narcotic drugs unlawfully imported in violation of 21 U.S.C. § 174. The judgments of conviction were appealed to this court and we reversed for error committed during the course of the trial. Casias v. United States, 10 Cir., 302 F.2d 513. After remand, the case was set for re-trial on July 13, 1962. On such date, defendant appeared with his counsel and informed the court that he was willing to waive indictment and plead guilty to the charge contained in an information alleging that he had unlawfuly sold, dispensed and distributed a quantity of narcotics in violation of 26 U.S.C. § 4704(a). Upon entering such a plea, the United States Attorney indicated his intention to dismiss the indictment charging violations of 21 U.S.C. § 174. The court accepted the plea of guilty to the information and granted the motion to dismiss the indictment. Defendant now asserts that the information to which he pleaded guilty is inadequate to protect him against double jeopardy and thus void and subject to attack under 28 U.S.C. § 2255. Emphasis is placed upon the fact that the information does not contain the name of the purchaser of the narcotics.
The name of the purchaser is not an element of an offense charged under 26 U.S.C. § 4704(a) and an indictment or information not setting forth the name is not constitutionally defective for such lack and subject to collateral attack. Nor need an indictment or information plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense. The judgment constitutes the bar. Martin v. United States, 10 Cir., 285 F.2d 150. And the extent of the judgment may be determined from an examination of the record as a whole, Clay v. United States, 10 Cir., 326 F.2d 196; Hester v. United States, 10 Cir., (dec. January 1964) or, indeed, proved by any other competent means. Cf. McDowell v. United States, 10 Cir., 330 F.2d 920.
In the case at bar the record clearly indicates that appellant's plea of guilty to the information is an outgrowth of and contained within the unlawful conduct detailed at his earlier trial. Appellant is in an unusually favorable position to prove the exact nature of his present judgment should that need ever arise.
The judgment is affirmed.
. The information alleged: “That on or about October 27, 1960, in the City and County of Denver, in the State and District of Colorado, RAY CASIAS, also known as Rickard, did unlawfully sell, dispense and distribute a quantity of a narcotic drag, to-wit: 320 milligrams of heroin, not in or from the original stamped package, in violation of 26 USC 4704(a).”
. To the extent, if any, that this statement conflicts with the views expressed by the Seventh Circuit in Lauer v. United States, 320 F.2d 187, we respectfully refuse to follow Dauer as did the Eighth Circuit similarly refuse in Jackson v. United States, 325 F.2d 477. See also, Robison v. United States, 9 Cir., 329 F.2d 156.
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_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
SIMMONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 5950.
United States Court oí Appeals First Circuit.
Heard Feb. 2, 1965.
Decided Feb. 23, 1965.
Eduardo Negron Rodriguez, San Juan, P. R., with whom Fiddler, Gonzalez & Rodriguez, San Juan, P. R., was on brief, for petitioner.
Gary Green, Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel,
Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Washington, D. C., were on brief, for respondent.
Before ALDRICH, Chief Judge, MARIS, Circuit Judge, and FORD, District Judge.
Sitting by designation.
PER CURIAM.
In Simmons, Inc. v. NLRB, 1 Cir., 1963, 315 F.2d 143, we held, reversing the Board in part, that the discharge on March 24, 1959 of a group of employees, known as the Comite, for inducing a strike to obtain recognition of the Comite when the employees were already lawfully represented, was not an unfair labor practice as to the majority of the Comite, but was as to one Aviles Padilla who had not taken part. We further held that the continuation of the strike to protest, these discharges became unprotected after the lawful representative executed a no-strike agreement on April 10, and that strikers after that date were not entitled to reinstatement. We excepted, and left open, the rights of Aviles Padilla, and returned the case to the Board for consideration of whether he was entitled to special treatment.
Finding that Aviles Padilla’s participation in the strike after April 10 was minimal and peaceful, and carrying to the limit our suggestion that he was in a special category because his discharge had been a clear unfair labor practice, the Board concluded that, on balance, the policies of the Act would be best advanced by requiring his reinstatement with back pay in spite of his post-April 10 activities.
On the facts found it seems to us that this is a typical matter in which we should not interfere with the Board’s decision. The fact that an employee who was clearly unlawfully discharged made an appearance to witness and perhaps passively encourage a strike in part initiated by his discharge, (see Simmons, Inc. v. NLRB, supra) need not cut off the rights which accrued to him by his wrongful discharge even though the strike itself was unprotected.
A decree must be entered enforcing the order of the Board, if 2(a), as it pertains to Aviles Padilla. The scope of the actual relief, in terms both of back pay and reinstatement in the light of certain allegedly changed circumstances, will be for the Board to determine in subsequent proceedings in accordance with its usual practice. See National Labor Relations Board v. Deena Artware, Inc., 1960, 361 U.S. 398, 411, 80 S.Ct. 441, 4 L.Ed.2d 400 (concurring opinion); NLRB v. Trinity Valley Iron & Steel Co., 5 Cir., 1961, 290 F.2d 47.
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:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
MANDOLI v. ACHESON, SECRETARY OF STATE.
No. 15.
Argued October 17, 1952.
Decided November 24, 1952.
Jack Wasserman argued the cause for petitioner. With him on the brief were Gaspare Cusumano and Harry Meisel.
Oscar H. Davis argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg and John R. Wilkins.
Mr. Justice Jackson
delivered the opinion of the Court.
This case presents but a single question, upon which petitioner and the Government are substantially agreed that the judgment of the Court of Appeals should be reversed. Does a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation lose his United States citizenship by foreign residence long continued after attaining his majority?
Petitioner Mandoli was born in this country, of un-naturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law. While he was a suckling, his parents returned to Italy taking him with them. At about the age of fifteen, he sought to come to the United States; but permission was refused by the American Consul at Palermo upon the ground that he was too young to take the journey unaccompanied.
In 1931, Mandoli saw brief service in the Italian army. In 1937, being 29 or 30 years of age, he attempted to come to the United States, but was rejected because of such army service. He renewed the effort in 1944, with the same result. In 1948, he was granted a certificate of identity which permitted him to enter the United States for prosecution of an action to establish his citizenship.
Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, contrary to his contentions, it found that his service in the Italian army was voluntary and that he then took an oath of allegiance to the King of Italy; second, that he continued to reside in Italy after attaining his majority, thereby electing between his dual citizenships in favor of that of Italy.
The Government abandoned the first ground because the Attorney General ruled that such service in the Italian army by one similarly situated could “only be regarded as having been taken under legal compulsion amounting to duress.” He said, “The choice of taking the oath or violating the law was, for a soldier in the army of Fascist Italy, no choice at all.” The Court of Appeals, however, relying largely on Perkins v. Elg, 307 U. S. 325, affirmed upon the ground that failure to return to the United States upon the attainment of his majority operated to extinguish petitioner’s American citizenship. We conclude that Mandoli has not lost his citizenship.
It would be as easy as it would be unrewarding to point out conflict in precept and confusion in practice on this side of the Atlantic, where ideas of nationality and expatriation were in ferment during the whole Nineteenth Century. Reception of the common law confronted American courts with a doctrine that a national allegiance into which one was born could be renounced only with consent of his sovereign. European rulers, losing subjects (particularly seamen) to the New World, adhered fiercely to the old doctrine. On the other hand, the United States, prospering from the migrant’s freedom of choice, became champion of the individual’s right to expatriate himself, for which it contended in diplomacy and fought by land and by sea. However, this personal freedom of expatriation was not always recognized by our own courts, because of their deference to common-law precedent. Finally, Congress, by the Act of July 27, 1868, declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness” and that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”
But this statute left unanswered many questions as to the overt acts that would effect a voluntary expatriation by our own citizens or would cause an involuntary forfeiture of citizenship. Prior to 1907, courts and administrators were left to devise their own answers.
Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship board. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of persons with dual citizenship. This board recommended that Congress follow what it assumed to be established de-cisional law and enact, among other things, that expatriation be assumed as to any citizen who became domiciled in a foreign state, with a rebuttable presumption of foreign domicile from five years of residence in a foreign state. This was proposed as to all citizens and not merely those possessing dual citizenship. Congress, however, instead of accepting this broad doctrine of expatriation, by the Expatriation Act of 1907 limited the presumption of expatriation from foreign residence to the case of naturalized but not of native-born citizens.
If petitioner, when he became of full age in 1928, were under a statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship, that duty must result from the 1907 Act then applicable. In the light of the foregoing history, we can find no such obligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.
The Nationality Act of 1940, though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill. This disagreement between the Departments was called to the attention of the Congress. While in some other respects Congress enlarged the grounds for loss of nationality, it refused to require a citizen by nativity to elect between dual citizenships upon reaching a majority.
The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins v. Elg, supra, had declared it to be the law. Miss Elg was American-born, of naturalized parents Swedish in origin. They took her to Sweden when she was but four years old, where she remained during her nonage. By virtue of a Swedish-American Treaty of 1869, this resumption of residence in Sweden repatriated the parents, which carried with it Swedish citizenship for their minor child. Under the Act of 1907, any American citizen is deemed expatriated if naturalized in a foreign state in conformity with its laws. Undoubtedly, Miss Elg had become naturalized under the laws of Sweden. But it was not by any act of her own or within her control, and about eight months after she became twenty-one, she sought and obtained an American passport and returned to this country where she resided for something over five years. American immigration officials then decided that her derivative naturalization had deprived her of American citizenship and put their harsh and technical doctrine to test by instituting proceedings to deport her. That case did not present and the Court could not properly have decided any question as to consequences of a failure to elect American citizenship, for Miss Elg promptly did so elect and decisively evidenced it by resuming residence here. What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.
We find no warrant in the statutes for concluding that petitioner has suffered expatriation. And, since Congress has prescribed a law for this situation, we think the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate. The judgment of the Court of Appeals should be reversed, with directions to remand the case to the District Court for the entry of an order declaring that the petitioner is a citizen of the United States.
Reversed and so ordered.
Certiorari was granted without opposition, 343 U. S. 976.
D. C. opinion not reported.
41 Op. Atty. Gen., Op. No. 16.
90 U. S. App. D. C. 1121, 193 F. 2d 920.
15 Stat. 223, 8 U. S. C. § 800.
H. R. Doc. No. 326, 59th Cong., 2d Sess., p. 23; see also 74, 79, 160 et seq.
34 Stat. 1228.
Administrative practice, when involving protections abroad, involves very different policy considerations and is not controlling here. However, while not always consistent, it seems to have settled to the rule we apply in this case. 3 Hackworth, Digest of International Law, 371; see also Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col. L. Rev. 840, 854.
8 U. S. C., c. 11.
See Hearings before House of Representatives Committee on Immigration and Naturalization on H. R. 9980, 76th Cong., 1st Sess., p. 32.
See also § 350 of Pub. L. No. 414, 82d Cong., 2d Sess., 66 Stat. 163, 269.
The question of whether the statutory grounds under the 1940 Act exclude other acts that will amount to voluntary expatriation was reserved in Kawakita v. United States, 343 U. S. 717, 730-732. It is not present in this case.
Question: What is the issue area of the decision?
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M. Miscellaneous
N. Private Action
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